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LIBRARY 
OF THE 
UNIVEHS IT Y 
OF ILLINOIS 



1920 
&4S 



I 



WAR POWERS OF THE EXECUTIVE 
IN THE UNITED STATES 



BY 

CLARENCE ARTHUR BERDAHL 

A. B. St. Olaf College, 1914 
A. M. University of South Dakota, 1917 



THESIS 

Submitted in Partial Fulfillment of the Requirements for the 

Degree of 
DOCTOR OF PHILOSOPHY • 

IN POLITICAL SCIENCE 

IN 

THE GRADUATE SCHOOL 

OF THE 

UNIVERSITY OF ILLINOIS 
1920 



1 



UNIVERSITY OF ILLINOIS 
THE GRADUATE SCHOOL 

May 11 191 20 

I HEREBY RECOMMEND THAT THE THESIS PREPARED UNDER MY 
SUPERVISION BY Clartnce Arthur Btrdehl 

ENTITLED ^!*J?JR*J!!? r * «f_th± Extent ivt In th e. United Strtte 



BE ACCEPTED AS FULFILLING THIS PART OF THE REQUIREMENTS FOR 



THE DEGREE of D«otor of Philosophy 




artment 




Digitized by the Internet Archive 
in 2013 



http://archive.org/details/warpowersofexecuOOberd_0 



i 



The powers of the Executive relating to war have received 
surprisingly little attention in treatises and commentaries on the 
Constitution. They are usually passed by with little more than a 
repetition o p the constitutional provision making the President 
the Commander-in-Chief of the armed forces of the nation. This 
study is an attempt to describe these war powers more fully and 
systematically than has heretofore been done. For this purpose, 
the terra "war porers" has been interpreted somewhat liberally, 
80 as to include not only the powers that may be exercised curing 
the actual conduct of war, but also those that relate to the initia- 
tion and termination of war and to the reconstruction period fol- 
lowing war. It has been necessary, in great measure, to work over 
old materiel and to make use of familiar historical incidents, 
nevertheless, it is hoped that something has been contributed to 
s v ow more clearly the comprehensive scope and the almost unlimited 
nature of this phase ®S the Presidents power. 

The writer is indebted to members of the Seminar, and 
more especially "to Professors Garner and Fairlie, for valuable sug- 
gestions and kindly criticism. He is alone responsible for any 
errors of fact or conclusion. 

University of Illinois 
April, 1920. 



ii. 



TABLE OF C0UTEKT3 . 

Page 

PREFACE i 

Chapter I. Introduction - -- -- -- -- -- -- -- -- -- -1 

General conceptions of executive power ---------- l 

General conceptions of the war powers -----------5 

Source of the President's war powers -----------11 

Forrr.s of presidential action- - -- -- -- -- -- -- - -IE 

Delegation of presidential powers- ------------15 

I. POWERS RELATING TO THE BEGIMIBG OF WAB 

Chapter II. Control of. Foreign Relations- ---------- -16 

Initiation arid formulation of foreign policy - -- -- --17 

Power of recognition- ------------------ -24 

Power to sever diplomatic relations- -----------28 

Executive agreements- ------------------ -30 

Chapter III. Military Measures Short of War ----------38 

Employment of armed forces in aid of the civil power- - - -38 
Protection of "inchoate" interests of the United States- - 40 
Protection of American rights r nd interests abroad- - - - -46 
Intervention end police supervision- -----------50 

Chapter IV. Power o* Defense- ---------------- -55 

Power to begin a "defensive" war -------------55 

Defense against attack or invasion- ----------- -60 

Punitive expeditions -------------------64 

Arming of merchant vessels- --------------- -67 

Recognition of "existing" state of war ----------71 

Chapter V. Powers with regard to a Declaration of war - - - - -80 

Debates in Convention of 1787- --------------80 

Importance of power of recommendation ---------- -82 

Declaration of causes and purposes ----------- -ICO 

Power 0^ veto ---------------------- 101 

notification of state of war -------------- -103 

II. kILITARY P07.ERS III TIME OF ,VAH 

Chapter VI. Power to Raise and Organize the Armed Forces- - - 107 

Nature 0^ the President's power- ------------ -107 

Powers under voluntary enlistment ------------ 108 

Powers under conscription- --------------- -112 

Exercise of power without authority ----------- 116 

Powers with regard to organization ----------- -120 



iii. 



Page 

Chapter VII. Powers of Command- --------------- 124 

Nature of powers as commander-in-chief --------- -1£4 

Power of personal command ---------------- 128 

General direction of military operations -------- -131 

Appointment and dismissal o* oi'-ficers-- - -- -- -- -- - 137 

Powers with regard to the militia- - -- -- -- -- -- -145 

Chapter VIII. Powers of Military Jurisdiction -------- 153 

Courts-mart lei- - -- -- -- -- -- -- -- -- -- -- 153 

Military commissions ------------------ -159 

Power of pardon --------------------- 165 

Chapter IX. Powers of Military Government- --------- -170 

Definition and authority to establish ---------- 170 

Power to determine its character ------------ -172 

Functions under military government ----------- 175 

III. CIVIL POWERS II? TILE OF WAR 

Chapter X. Control of Administration ------------ -187 

Military administrative agencies- ------------ 187 

Special war administrative services- ---------- -191 

Proposals for coordination- --------------- 193 

Overmen Act- ---------------------- -195 

Chapter XI. Powers of Police Control- ------------ 205 

The var power and the Bill of Rights ---------- -205 

Police control of aliens- ---------------- 207 

Suspension of the writ of hebeas corpus- - -- -- -- - -213 | 

Power of censorship ------------------- 218 

Chapter XII. Powers of Economic Control- ---------- -231 

Control 0^ -Pood and fuel- - - 232 

Control of trade and industry- ------------- -237 

Control of private property --------------- 242 

Control of transportation and communication- ------ -244 

IV. POWERS RELATING TO THE TERMINATION OF WAR 

Chapter XIII. Power of Terminating far in the United States- -253 

Methods of terminating war- --------------- 254 

Recent opinions and actions in the United States - - - - -254 

Debates in Convention of 1787 -------------- 258 

Official declarations by Congress- ----------- -261 

Chapter XIV. Powers with regard to a Treaty of Peace- - - - - 264 

Armistice and preliminary protocol ----------- -264 



iv. 



Page 



Appointment of peace commissioners ----------- 270 

Control of peace negotiations ------------- -277 

Final ratification ------------------- 282 

Chapter XV. Powers with regard to Reconstruction- ----- -285 

Resumption of diplomatic relations - - --------- 266 

Government of acquired territory- ----------- -287 

Powers under recent war legislation- ---------- 299 

Chapter XVI. Conclusion ------ ---------- -302 

BIBLIOGRAPHY 310 



"It is difficult to describe any 
single part a great governmental sys- 
tem without describing the whole of it. 
Governments are living things and operate 
as organic wholes." 

Woodrow Wilson. 

Constitutional Government 
in the United States. 



1. 



Chapter I. 
Introduction. 

"the executive power shall be ye ate d in a President of the 
United States of America." 1 The language here used by the Constitu- 
tion in describing the executive power in the government of the 
United States is strikingly different from that describing the gene- 
ral power of either of the other two great departments. The article 

dealing with the Legislative department uses the words, "All legis- 

2 

latlve powers herein granted • • f " showing that the following 
specified powers clearly constitute a limitation on the possible 
claims of that department to power; while the article devoted to the 
Judiciary also expressly states that the judicial power of the 
United States "shall extend to" certain enumerated cases, thereby 
obviously excluding all other cases over which the Judiciary might 
otherwise claim jurisdiction. 

The lack of such express limitations in the article deal- 
ing with the Executive has led to some difference of opinion as to 
whether the executive power vested in the President by the Constitu- 
tion is defined and limited by the following specified powers, or 
whether it includes other powers not enumerated but naturally execu- 
tive in character. Even if the former interpretation of the Consti- 
tution is accepted as correct, the conception of the term "executive 
power" still remains somewhat vague, since several of the expressly 
enumerated powers of the President, such as his powers as Commander- 
in-Chief and his power to see that the laws are executed, are in 
themselves undefined in the Constitution, uncertain as to their 

1 Const itution . Art. II, Sec. 1. 

2 Ibid .. Art~I. Sec. 1. 

g Ibid.. Art. ITI. Sec. 2, 



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limits, and therefore subject to various interpretations. 

The article dealing with the Executive has therefore been 
characterized as "the most defective part of the Constitution", its 
loose and general expressions enabling the President, by implication 
and construction, "either to neglect his duties or to enlarge his 
powers." A distinguished historian says that while our Constitution 
in the main is of the rigid type, its flexible character is shown 
in the provisions conferring the powers and defining the duties of 
the Executive. "Everything is clearly stated, but the statements 
do not go beyond the elementary." Pointing out that while the Con- 
stitution did not authorize certain of Lincoln's acts, neither did 
it expressly forbid them, he holds that there is "room for inference, 
a chance for development, and an opportunity for a strong man to im- 
print his character upon the office."** Somewhat the same idea was 
expressed by President Wilson some years ago when he wrote: "The 
President is at liberty, both in law and conscience, to be as big 
a man as he can. His capacity will set the limit." 

A doctrine of constitutional construction the so-called 
Wilson-Roosevelt doctrine with regard to the control of matters 
within the "twilight zone" between the national and state jurisdic- 
tions 7 -- was translated by President Roosevelt into terms of in- 



4 View of Secretary of State Upshur. See his more extended 
statement, quoted in Taft, Our Chief Magistrate and His Powers . 141. 

5 Rhodes, Historical Essays . 204. £14^ 

6 Constitutional Government in the United States . 70. 

7 First enunciated by James Wilson in 1785, recently advocated, 
by President Roosevelt, and stated as follows: "That when a subject 
has been neither expressly excluded from the regulating power of the 
Federal Government, nor expressly placed within the exclusive con- 
trol of the State 8, it may be regulated by Congress if it be, or 
become, a matter the regulation of which is of general importance 

to the whole nation, and at the same time a matter over which the 
States are, in practical fact, unable to exercise the necessary con- 
trolling power." Willoughby, On the Constitution . I, 47. 



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herent executive power. He 88id: "The most important factor in 
getting the right spirit in my Administration, next to insistence 
upon courage, honesty, and a genuine democracy of desire to serve 
the plain people, was my insistence upon the theory that the execu - 
tive p6wer was limited only by specific restrictions and prohibi - 
tions appearing in the Constitution or imposed by Congress under its 
constitutional powers. My view was that every executive officer in 
high position was a steward of the people bound actively and affir- 
matively to do all he could for the people, and not to content him- 
self with the negative merit of keeping his talents undamaged in a 
napkin. I declined to adopt the view that what was imperatively 
necessary for the Nation could not be done by the President unless 
he could find some specific authorisation to do it. My belief was 
that it was not only his right but his duty to do anything that the 
needs of the Nation demanded unless such action was forbidden by 
the Constitution or by the laws * Under this interpretation I did 
and caused to be done many things not previously done by the Presi- 
dent and the heads of the departments. I did not usurp power but I 
did greatly broaden the use of executive power . In other words, I 
acted for the public welfare, I acted for the common well being of 
all our people, whenever and in whatever measure was necessary, un- 
less prevented by direct constitutional or legislative prohibition? 

Roosevelt's theory of executive power is disputed, how- 
ever, by equally eminent authority. Senator Eayner, one of the 
leading constitutional lawyers of his time, contended that the 
clause dealing with the executive power relates simply to the dis- 
tribution of governmental functions, and should not be considered 

8 Roosevelt, Autobiography . 388-589. 



.V 



4. 



as a grant of power at all. Professor Goodnow says that the holder 
of executive power "is for the most pert to exercise the powers 
which have clearly been given to him by the Constitution, and the 
Constitution itself is regarded as a grant of power not otherwise 
possessed , rather than as a limitation of power already in exis- 
tence."*^ 

The Supreme Court has likewise not only repudiated the 
Wilson- Roosevelt doctrine of constitutional construction as being 
contrary to the 10th Amendment,*''' but it has also definitely re- 
futed the Roosevelt theory of executive power. "We have no officers 
in this government," says the Court, "from the President down to 
the most subordinate agent, who does not hold office under the law, 
with prescribed duties and limited authority . "^ It would there- 
fore seem that ex-President Taft reflected the better opinion when 
he stated the true view of executive power to be "that the President 
can exercise no power which cannot be fairly and reasonably traced 
to some specific grant of power or Justly implied and included with- 
in such express grant as proper and necessary to its exercise. Such 
specific grant must be either in the Federal Constitution or in an 
Act of Congress passed in pursuance thereof. There is no undefined 
residuum of power which he can exercise because it seems to him to 
be in the public Interest .... The grants of Executive power are 
necessarily in general terms in order not to embarrass the Execu- 
tive within the field of action plainly marked for him, but his 

9 Speech in U. S. Senate, Jan. 31, 1907. Cong . Record , 
21 I, Pt. II (59 Cong., 2 Seas.), 2010. 

10 Princip les of Constitutional Government . 89. 

11 Kansas v. Colorado . 206 tJ. 5.. 46, 63-90, (1907). The 10th 
Amendment reads as follows: "The powers not delegated to the United 
States by the Constitution, nor prohibited by it to the States, are 
reaerved to the States respectively, or to the people." 

12 The Floyd Acceptances. 7 Wall.. 666 676 ( 1 86Q ) . 



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jurisdiction must be justified and vindicated by affirmative con- 
stitutional or statutory provisions or it does not exist. 1,18 

Although the weight of authority upholds the contention 
that executive power in the United States is limited definitely 
to the powers enumerated in the Constitution, or clearly implied 
therefrom, the interpretation of those enumerated powers is fre- 
quently such as to give to the President an extraordinary and practi 
oally undefined range of authority. Thus, for example, it has been 
authoritatively held that the President, under his power "to take 
oare that the laws be faithfully executed, " may undertake measures 
and exercise authority, for the enforcement of the law or the pro- 
tection of federal rights, not specifically granted by Constitution 
14 

or statute. Other of the President's enumerated powers, such as 
his power as Commander-in-Chief and his power to receive and send 
ambassadors and ministers, are likewise subject to the same broad 
interpretation. 

If the general conception of executive power in the United 
States is somewhat vague and open to various interpretations, that 
is especially true of the nature and extent of executive power with 
regard to war. It has rightly been said that "the domain of the 
exeoutive power in time of war constitutes a sort of 'dark conti- 

13 Our Chief Magistrate and His Powers . 139-140. 

14 in re Heagle V 1S>6 tf. S.. 1. 65-64. 67 (1890). Cf. dis- 
senting opinion, which held that such enforcement or protection 
■must proceed not from the President, but primarily from Congress" , 
and that if Congress does not pass laws in reference to such mat- 
ters, "there is not the slightest legal necessity out of which to 
imply any such power in the President." Ibid . . 82, 83. See also 
view of Prof. Willoughby: "The obligation to take care that the 
laws of the United States are faithfully executed, is an obligation 
which is to be fulfilled by the exercise of those powers which the 
Constitution and Congress have seen fit to confer. On the Con- 
stitution, II, 1151. 



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nent ' in our jurisprudence, the boundaries of which are undetermin- 

.a.- 15 

Prom the very beginning of our history as a nation, states 
men and commentators have held that since it is impossible to fore- 
see what may be the exigencies or circumstances endangering the 
public safety, therefore "no constitutional shackles can wisely be 
imposed", and none are imposed upon the so-called war powers. 16 
They have held thst there are two distinct classes of powers under 
the Constitution the peace powers, which are subject to the re- 
strictions of the Constitution, and the war powers, which are 
limited only by the laws and usages of nations, 17 and under which 



16 J. W. Garner, in Rev, de Droit Pub, et de la Sci» Pol .. 

XXXV, 13 (Jan. -Mar., 1918). 

16 See argument of Hamilton, in The Federalist . Ho. 23 (Gold- 
win Smith ed., pp. 119-120). Cf. speech of Senator Sumner, in 

U. S. Senate, June 27, 1862: "Pray, Sir, where in the Constitution 
is any limitation of the War Powers? Let Senators who would limit 
them mention a single section, line, or phrase, which even hints 
at 8ny limitation. . . The War Powers are derived from the Consti- 
tution, but, when once set in motion, are without any restraint 
from the Constitution ; so that what is done in pursuance of them 
is at the same time under the Constitution and outside the Consti- 
tution. It is under the Constitution in the latitude with which 
it is conducted; but, whether under the Constitution or outside the 
Constitution, all that is done in pursuance of the War Powers is 
constitutional." Works of Chsrles Sumner . VII, 131-132. See also 
Pisher, Trial of the Constitution . 199. " 

17 "There ere, then, in the authority of Congress and of the 
Executive, two classes of powers, altogether different in their 
nature and often incompatible with each other — the war power and 
the peace power. The peace power is limited by regulations and re- 
stricted by provisions prescribed within the Constitution itself. 
The war power is limited only by the laws and usages of nations. 
This power is tremendous; it is strictly constitutional, but it 
breaks down ever;y barrier so anxiously erected for the protection 
of liberty , of property ana" ^o ~life . . . The powers of war are all 
regulated byThe laws of nations, and are subject to no other limi- 
tations." Speech of John Quincy Adams, in House of Representatives, 
May 25, 1836. Cong. Debates . XII, Pt. IV (24 Cong., 1 Sobs.), 4038, 
4039. 



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the rights of peace may even be disregarded or curtailed. They 

have asserted that the war power implies the right to do anything 

that may seem necessary to carry on the war successfully, even to 

19 

the extent of performing otherwise unconstitutional acts. 

These claims with regard to the extent of the war power 
have also Deen sanctioned by the Supreme Court. Thus, in uphold- 
ing the Confiscation Acts of the Civil War, the Court said: "If 
the statutes were not enacted under the municipal power of Congress 
to legislate for the purishment of crimes against the sovereignty 
of the United States; if, on the contrary, they are an exercise of 
the war powers of the government, it is clear they are not affected 
by the restrictions imposed by the Sth and 6th Amendments . ... Of 
course the power to declare war involves the power to prosecute it 
by all means and in any manner in which war may be legitimately pros- 



18 "But in bestowing upon the Government War Powers without 
limitation, they (the makers of the Constitution) embodied in the 
Constitution all the Eights of War as completely as if those rights 
had been severally set down and enumerated; and among the first of 
these is the right to disregard the Rights of Peace." Works of 
Charles Sumner . VII, 136-137. 

"It seems to be pretty well settled by the common sense of 
mankind that when a nation is fighting for its existence it cannot 
be fettered by all the legal technicalities which obtain in time of 
peace." Rhodes, Historical Essays . 214. 

"What is the effect of our entering upon the war? The ef- 
fect is that we have surrendered and are obliged to surrender a 
great measure of that liberty which you and I have been asserting 
in court during all our lives; power over property, power over per- 
sons. This has to be vested in a military commander in order to 
carry on war successfully." Speech of Elihu Root at Saratoga Spring^ 
Sept. 1917, quoted in Va. Law Rev .. V, 179. 

19 "When the Constitution conferred upon Congress the right to 
declare war, it by necessary implication conferred upon Congress the 
right to do anything that in its judgment is necessary to carry that 
war to a successful conclusion." Senator P. C. Knox, in U. S. Senatty 
May 29, 1917. Cong. Record . 65 Cong., 1 Sees., 3276. 

"I felt that measures otherwise unconstitutional might be- 
come lawful by becoming indispensable to the preservation of the 
Constitution through the preservation of the nation." Letter of 
Lincoln to A. G. Hodges, Apr. 4, 1864. Kioolay & Hay, Complete 
Works of Abraham Lincoln . II, 508. 

"If the Union and the Government cannot be saved out of 



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ecuted."*^ Even the dissenting justices in this case admitted that 
legislation founded upon the war power is subject to quite different 
considerations from that based upon the municipal power of the gov- 
ernment, and 'is subject to no limitations, except such as are im- 
posed by the law of nations in the conduct of war . . • The war 
powers of the government have no express limitations in the Consti- 
tution, and the only limitation to which their exercise is subject 

21 

is the law of nations." The same principle has also been upheld 

go 

by the Court in other cases. * 

Though authorities thus seem to agree regarding the nature 
and unlimited extent of the "war powers" as such, the extent to 
which the exercise of these war powers is vested in the President 
or in Congress is a matter of some dispute. For example, Senator 
Browning, during the Civil War, asserted the complete authority of 
the Executive in determining upon the measures necessary to meet 
any war emergency, denying that Congress hed even coordinate power 
with the President in that respect. "It is not true", he said, 
"that Congress may decide upon the measures demanded by military 
necessities and order them to be enforced. . • These necessities 
can be determined only by the military oommander, and to him the 
Constitution has intrusted the prerogative of judging of them. 
When the Constitution made the President 'Commander-in-Chief of 
the Army and Navy of the United States', it clothed him with the 
incidental powers necessary to a full, faithful and sufficient per- 

this terrible shock of war constitutionally, a Union and a Govern- 
ment must be saved unconstitutionally." Fisher, Trial of the Con - 
stitution . 199. 

55 killer v. U. S .. 11 Wall., 268, 304-305, (1870). 

21 Ibid ., 

22 Stewart v. Kahn .. 11 Wall., 493, 506-607, (1870): Mechanics 
and Traders Bank v. Union Bank . 22 Wall., 276, 296, (1874) ;"" gcCor - 
mlcfr et al. . v. Humphrey. 27 Ind. , 144, 154 (1866). 



9 



formance of the duties of that high office; and to decide what are 
military necessities, and to devise and execute the requisite mea- 
sures to meet them, is one of these incidents. It is not a legis- 
lative, but an executive function, and Congress has nothing to do 
with it." 23 

On the other hand. Senator Sumner disputed this claim to 
executive power, and held that the exercise of the war powers 
rested with Congress. "Of the pretension that all these enormous 
powers belong to the President, and not to Congress, I try to speak 
calmly and within bounds. I mean always to be parliamentary. But 
a pretension so irrational and unconstitutional; so absurd and 
tyrannical, is not entitled to respect. Such a pretension would 
change the national Government from a government of law to that of 
a military dictator . . ." 24 

As a matter of fact, the growth of executive power into 
a practical dictatorship in time of war, does not seem to have been 
especially feared in this country. During the Revolution, attempts 
were made, both in New York and Virginia, to create a dictator, who 
in the latter state was to be "invested with every power legislative, 
executive, and judiciary, civil and military, of life and death over 

AC 

our persons and over our properties", a proposal apparently ap- 

23 Speech in U. S. Senate, June 25, 1862. Cong. Globe . 37 
Cong., 2 Sees., 2919, 2920, 2922. 

24 Speech in U. S. Senate, June 27, 1862. Works of Charles 
Sumner . VII, 139-140. But of. Sumner's remarks in a speech at Bos- 
ton, only a few months later (Oct. 6): "In war there is no constitu- 
tional limit to the aotivity of the executive, except the emergency. 
The safety of the people is the highest law. There is no blow the 
President can strike; there is nothing he can do against the Rebel- 
lion, that is not constitutional. Only inaction can be uuoonstitu- 
tional." Ibid., 217. 

25 ETTTot's Debates . II, 357-361; Writings of Thomas Jeffer - 
eon, 111,231. " ~ 



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10. 



proved by suoh a democrat as Patrick Henry. Washington was actuals 

£7 

ly given the power of a dictator on three separate occasions; 
while Lincoln has been referred to by impartial writers as exercis- 
ing "more arbitrary power than any Englishman since Oliver Crom- 

28 

well", and as one whose acts were "worthy of a Tudor." Daring the 

recent world war, the necessity of making the President the supreme 

dictator in order to win the war was seriously suggested in Con- 
29 

grees. 

That the President can of his own accord constitutionally 

assume dictatorial power in time of war has been denied by the 

30 

courts as "an extravagant assumption"; although most authorities 

hold that the war powers of the President constitute a "latent 

power of discretionary action" capable of almost unlimited expansion 

in times of emergency and making the President practically absolute 

31 

within a certain sphere of action. 



26 Elliot's Debates . Ill, 160; Writings of Thomas Jefferson . 
Ill, 231. They were, however, bitterly opposed by Jefferson. 

27 See resolves of Dec. 27, 1776, Sert. 17 & Nov. 14, 1777. 
Jour. Cont. Cong .. VI, 1045-1046; VIII, 752; IX, 905. See also 
Elliot's Debates . Ill, 79. 

28 Rhodes, Histori cal Essays . 213; cf. Bryce, American Common- 
wealth, I, 65-66. 72; Ford. Rise and Growth of American Politics , ^80 ■ 

29 Senator Harding (Ohio) made the suggestion in August, 1917: 
"What the United States needs and what it must have if it is to win 
the war is a supreme dictator , with sole control of and sole respon- 
sibility for every phase of war activity, and this today means prac- 
tically every phase of Government. Hot only does this country need 
such a dictator, in my opinion it is sure to have one before the war 
goes muoh further. • .The sooner it comes the better for all of us . 
• . For supreme dictator at the present moment there is but one pos- 
sible man, the President of the United States." H. Y. Times . Feb. 10. 191t . 

30 Jones v. Seward , 40 Barb. (N.Y.) 563, 571, (1863). 

31 Goodnow. Comparative Administrative Law . I, 32; Watson, On 
the Constitution . II. 914; Baldwin. Modern Political Institutions . 
91-92; Channing, History of the United Stetes . III. 513; W. A. Dun- 
ning, "The War Power of the President". Hew Republic XI, 76-79 (May 
19, 1917). For a somewhrt extravagant claim as to the absolute 
nature of the President's war powers, see remarks of Senator Lewis, 
in U. S. Senate, June 30, 1917, Cong. Record LV, Pt. 5 (65 Cong., 

1 Sees.), 4552, 4553. ' 



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The exact limits of this sphere of action for the President 
and the line of demarcation between his war powers end those of Con- 
gress, are difficult to determine. An attempt to draw such a line 
and to delimit such a sphere of action was made in a famous case in 
the following language: "Congress has the power not only to raise 
and support and gorern armies, hut to declare war. It has, there- 
fore, the power to provide fcy law for carrying on war. This power 
necessarily extends to all legislation essential to the prosecution 
of war with vigor and success, except such as interfere with the 
command of the forces and the conduct of campaigns. That power and 
duty belong to the President as Commander-in-Chief. Both these 
powers are derived from the Constitution, but neither is defined by 
that instrument. Their extent must be determined by their nature 
and by the principles of our institutions. The power to make the 
necessary laws is in Congress; the power to execute in the Presi- 
dent. Both powers imply many subordinate and auxilliary powers. 
Bach includes all authorities essential to its due exercise. But 
neither can the President in war more then in peace, intrude upon 
the proper authority of Congress, nor Congress upon the proper 

authority of the President. Both are servants of the people, whose 

32 

will is expressed in the fundamental law. H Other authorities 
have attempted a briefer and simpler delimitation by saying that 
"Congress regulates wahtever is of general and permanent importance, 
while the President determines all matters temporary and not general 
in their nature. 1,33 

The main source of the President's war powers is of course 

32 Ex parte Milllgan . 4 Wall., 2, 139 (1866). 

33 Peirlie. National Administration of the United States . 33; 
cf. Von Hoist, Constitutional Lew of the United States . 193. 



i *5 vt. 



■ .> „ 

. it 



12. 



the Constitution. Besides certain powers relating directly to war 
that are expressly conferred upon the President by that instrument, 
other powers and duties are vested in him that may have an important 
hearing on the oonduct of war; while still other clauses of the 
Constitution not referring directly to the President may by neces- 
sary implication add to his war powers. 36 Other of the President's 
powers with regard to war ere derived from international law and 
practice, are conferred by statute, or are established as a result 
of custom and usage. To define more clearly these war powers of the 
President, to determine their nature and source, and to discover 
the manner of their exercise, is the purpose of this study. 

The most common forms through which the President in per- 
son exercises his powers, are by proclamations and executive orders, 
the former generally containing announcements and decisions of the 
widest interest and broadest scope, the latter usually concerning 
matters not of such general interest. Either may be issued as a re- 
sult of express or implied statutory authorization, or by virtue of 
the President's constitutional position as Chief Executive. The 
great increase in the number of these proclamations and executive 
orders issued in war time is also an excellent indication of the 
growth of the war powers of the Executive over his power in time of 
peace. 

Other forms of Presidential action include rules and 
regulations issued under statutory authority or by virtue of the 

34 Art. II, Sec. 2, CI. 1 (commander-in-chief). 

35 Art. I, Sec. 7, CI. 2, 3 (sign and veto bills); Art. II, 
Sec. 1, CI. 8 (oath of office); Sec. 2, 01. 1 (power of pardon); 
Sec. 2, CI. 2 (power with regard to foreign relations and appoint- 
ment of officers); Sec. 3 (recommend measures, call special session, 
and execute the laws). 

36 Art. I, Sec. 9, CI. 2 (habeas corpus); Art. IV, Sec. 4, 
(guaranty of republican government and of protection). 



13. 



President's constitutional power; directions, instructions, or order^ 
to heads of departments and other agencies; and decisions on matters 
requiring his approval or coming to him through appeals from the 
decisions of subordinate officials. Finally, the commissioning of 
officers appointed by him with or without the consent of the Senate, 
the recommendation of measures to Congress, and the signing or veto- 
ing of bills, may be included among the means through which the 

President exercises his authority, and which must be considered in 

37 

connection with this study of his powers. 

Hot all of the acts required of the President can possibly 
be performed by him personally, and the courts have definitely recog- 
nised that he may act through the heads of departments. "The Presi- 
dent speaks and acts through the heads of the several departments in 
relation to subjects which appertain to their respective duties", 
and the acts of the heads of departments are "in legal contemplation 
the act of the President". 38 

It has also been held that heads of departments may in 

39 

turn act through subordinate officials in the departments; but 
the question as to how far this delegation of power may be carried 
and still be considered the act of the President seems as yet to be 
unsettled by the courts. It has been pointed out that most orders 
and regulations are in feet prepared by subordinate officials in 
the several departments, although issued in the name of the hesd of 
the department or in the name of the President; and also that in 
some cases, and especially during the recent war, such orders and 
regulations have been issued by subordinate officials, acting by 

37 Cf. Fairlie, National Administration of the U. S. . 41-42. 

38 Wilcox v. JacVson . 13 Pet.. 498. 513 (1839); 7T"3. v . 
Ellas on . 16 Pet., 291 (1842). 

3T U. S. v. Warfield . 170 Fed., 43 (1909). 



■ t 



14. 



authority of the head of the department, in matters where the sta- 

40 

tutes vested the power in the President. This practice, undoubt- 
edly becoming more common, opens up a vast new field for a study of 
the exercise of Presidential powers. Since, however, as has been 
suggested, it is still an open question how far such exercise of 
authority by subordinate officials can be considered as the act of 
the President, this study makes no attempt to include any exercise 
of power but by the President himself, or for which he may clearly 
be immediately responsible. 

40 J. A. Pairlie, in Mich. Law Rev. . XVIII, 188 (Jan., 1920). 



POWERS RELATING TO THE BEGINNING OP WAR. 



16. 



Chapter II. 
Control of Foreign Relations . 

The function of managing the foreign relatione may he 
classified into two distinct branches: (1) the power of inter- 
course, intercommunication, and negotiation; (£) the power of en- 
tering into formal or binding international compacts."*" The latter 

2 

power is shared by the President with the Senate, but the former 

belongs exclusively to the President. "The President is the sole 

organ of the nation in its external relations, and its sole represen 

tative with foreign nations." 

Although diplomatic negotiations and intercourse are 

regularly conducted through the Department of Stete, the acts of 

that department are in legal contemplation the acts of the Presi- 
4 

dent, and, in fact, the Department of State has generally been 
recognized ae having a special status, as being more directly sub- 
ject to the control of the President than any other department. 
This was clearly set forth by Senator John C. Spooner in a speech 
before the United States Senate on January 23, 1906, when he said: 
"The act creating the Department of State in 1789, was an exception 
to the acts creating the other Departments of the Government. . . . 
It is a Department which from the beginning the Senate has never 
assumed the right to direct or control, except as to clearly de- 
fined matters relating to duty imposed by statute and not connected 

1 Pomeroy, Constitutional Law (Bennett's ed.) , 564; Fairlie, 
National Administration of the United States , 29-50. 

2 Constitution . Art. II, Sec. 2, CI. 2. 

3 John Marshall, in House of Representatives, Mar. 7, 1800. 
Annals of Cong . 6 Cong., 613; cf. Pomeroy, op. clt . » 564; Corwin, 
The President's Control of Foreign Relations , 55. 

3 Jones v. U. S . 157 U. S. 202, 217 (1890); Crandall, Treaties 
Their Making and Enforcement (2nd ed.) f 93. 



17. 



with the conduct of our foreign relations. We direct ell the other 
heads of Departments to transmit to the Senate designated papers or 
information. We do not address directions to the Secretary of 
State. We direct requests to the real head of that Department , the 
President of the United States , and. as a matter of courtesy, we 
add the qualifying words, 'if in his Judgment not incompatible 
with the public interest '. " 5 

This control which the President exercises over our for- 
eign relations has, with regard to his war power, several principal 
phases. In the first place, it gives the President the whole power 
of initlat ing and formulating the foreign policy of the government , 
and virtually o^ committing the nation to its execution. Jeffer- 
son expressed this idea in a letter to M. Genet, November 22, 1793: 
"He (the President) being the only channel of communication between 
this country and foreign nations, it is from him alone that foreign 
nations or their agents are to learn what is or has been the will 
of the nation; and whatever he communicates as such , they have the 
right . and are bound to consider as the expression of the nation ." 
Ex-President Taft, referring to the President's power of conduct- 
ing the diplomatic correspondence, expressed the same thought in 
the following words: "He is bound in such correspondence to discuss 
the proper construction of treaties. He, must formulate the foreign 
policies of our government . He must state our attitude upon ques- 
tions constantly arising. While strictly he may not bind our 
government as a treaty would bind it, to a definition of its rights, 
still in future discussions foreign Secretaries of other countries 

5 Cong. Record . 59 Cong., 1 Sess., 1420; cf. Ogg & Beard, 
National Governments and the World War . 97. 
5 Am. State Papers . For. Rel.. I. 184. 



18. 



are wont to look for support of their contentions to the declara- 
tions and admissions of our Secretaries of State in other contro- 
versies as in a sense binding upon us. There is thus much pract ical 
framing of our f oreign policies in the executive conduct of our 
foreign relat ions."'' President Wilson has put the case for the 
President even more strongly: "One of the greatest of the Presi- 
dent's powers (is) . . . his control, which is very absolute , of the 
foreign relations of the nation. The initiative in foreign effairs, 
which the President possesses without any restriction whatever , is 
virtually the power to control them absolutely. The President can- 
not conclude a treaty with a foreign power without the consent of 
the Senate, but he may guide every step of diplomacy, and to guide 
diplomacy is to determine what treaties must be made, if the faith 
and prestige of the government are to be maintained. He need dis- 
close no step of negotiation until it is complete, and when in any 
critical matter it is completed the government is virtually commit - 
ted . Whatever its disinclination, the Senate may feel itself com- 
mitted also." 8 

This power of the President has also been definitely up- 

Q 

held by the Supreme Court, and there can thus be no question as 
to his right and power under ordinary circumstances to initiate and 
formulate such diplomatic policies as he may deem proper, and vir- 
tually commit Congress and the country to their execution. It is 
also freely conceded by authorities that the Executive Department, 
by means of this branch of its power over foreign relations, "holds 

7 Our Chief Magistrate and His Powers , 113. 

8 Constitutional Government . 77-78; See also President Wil- 
son's letter to Senator Fall, Dec. 8, 1919. Infra. , -29; s. E. 
Baldwin, in Yale Rev .. IX, 407. 

9 Foster v. Ueilson . 2 Pet., 253, 309 (1829); Williams v. 
Suffolk Ins. Co .. IS Pet., 415, 420 (1839). 



19. 



In its keeping the safety, welfare, and even permanence of our 
internal and domestic institutions." 10 This fact, that policies 
leading to disturbed relations with other powers and even endanger- 
ing the peace and safety of the country may be, and in fact have 
been, adopted at the will of the Executive, has led to considerable 
discussion as to the propriety of entrusting the sole responsibility 
for these matters to the President. The question has been raised 
whether, in view of the power of Congress to declare war, the Presi- 
dent is under a constitutional obligation not to formulate and pro- 
secute such diplomatic policies as might incur the risk of war, or 
whether, in case grave consequences are feared, he should not at 
least advise snd consult with Congress. 

The idea that the President is under some such obligation 
has been brought forward on several occasions. It was raised in 
18E6, when the proposal of President Adams to send representatives 
to the Panama Congress* 1 aroused the opposition of such senators as 
Hayne, Woodbury, White, Van Buren, and Benton, largely on the ground 
that this Congress was to be really a congress of belligerents, and 
that the United States, by taking part, would compromise its neu- 
trality, become involved in "entangling alliances", and incur the 

12 

risk of war with Spain. Their sentiments were expressed by Van 
Buren (later President), when he said: "It is, then, the design of 
the Executive to enter into an agreement at the Congress . . . that 
if the powers of Europe make common cause with Spain, or otherwise 
attempt the subjugation of Spanish America, we shall unite with the 
l8tter, and contribute our proportion to the means necessary to 

10 Pomeroy, op. cit . . 565. 

11 Richardson. Messages and Papers of the Presidents . II, 
318-320. 

12 Benton's Debates . VIII, 423,425,435,436,441,446,450,462. 



01 «t 



20. 



make the resistance effectual; and further, that we shall bind our- 
selves, at that Congress, as to the manner in which we shall resist 
any attempts, by the European powers, to colonize any portion of 
this continent". Such a proposal he characterized as "a measure by 
which the peace of the country is to be exposed to a contingency 
beyond the control of our Government — by which the great question 
of peace or war will be taken from the Representatives of the peo- 
ple — by which, instead of retaining that freedom of action which 
we now possess, we shall bind ourselves, in a certain event, to 
pursue a certain course, whatever those, to whom the Government of 
the country may have been committed, shall think the honor or 
interest of the country may require. 

In the House of Representatives there was likewise con- 
siderable opposition to the President's proposal on the same grounda 
Thus Mr. Rives spoke of the result of our participation in the Con- 
gress as "most probably the adoption of measures endangering the 
future peace of the country", and of the President's declaration 
with regard to foreign interference in the affairs of South America 

as "a conditional, or, to use a more diplomatic phraseology, a pro- 

14 

visional declaration of war;" while Mr. Hamilton remarked, "We 
have become, at the execlusive will of the President, the arbitrator 
of the New World, and, in that character, have sent bullying pro- 
tests to the old. The Cabinet has, in our name, made two solemn 
contracts, to go to war in two contingencies, without, 'as a matter 
of preliminary advisement', even condescending to consult us."^ 
Others spoke to the same effect, and an attempt was even made to in- 

13 Benton's Debates . VIII, 446-447. 

14 Ibid .. IX, 107, 111. 

15 T5T3". , 136. 



21. 



struct the envoys to the Congress by attaching conditions to the 

16 

resolution providing for the mission. 

These conditions were vigorously opposed in the House by 
Webster and others as an invasion of the power of the President to 
instruct ministers, 17 and were eventually beaten. 1 ® There was, 
however, considerable sentiment to the effect that while there was 
no power in the House to issue instructions either to the President 
or to ministers, still the House, through its power of granting or 
refusing appropriations, might exercise a restraint upon foreign 
diplomatic intercourse a power which should, however, be exer- 
cised only when the policy of the Executive was clearly tending to 

19 

involve the country in war. Senator Johnston (of Louisiana) 
probably best summed up the position of the President and his sup- 
porters when he said: "There is nothing peculiar in the present 
case. The President has , at all times, the power to commit the 
peace of the country , and involve us in hostilities , as far as he 
has power in this case. To him is confided all intercourse with 
foreign nations. To his discretion and responsibility is intrusted 
all our delicate and difficult relations: all negotiations and all 
treaties are conducted and brought to issue by him."^ Even Van 
Buren, who had spoken against the mission, admitted that, no matter 
what action the Senate or Congress might take, the President could 
still constitutionally provide for such mission on his own eutho- 



16 Benton' 8 Debates . IX, 91. 

17 Ibid .. 94-S5, 101, 115, 150. 

18 IbTcT . . 217, 218. 

19 See, for example, remarks of Mr. Thompson, Ibid . . 182. 

20 Ibid .. VIII, 439. 



rity. CJ - 

Whether or not the Panama mission of 1836 actually carried 
with it 1 he dangers attributed to it by its opponents may still be 
a matter of some dispute, but is of little consequence to this 
study. The important point to be noted, on which both advocates 
and opponents of the mission were agreed, is that, if it was within 
the power of the President alone to decide upon a certain diplo- 
metic policy, such as this mission, it was likewise within his 
power, and his alone, to determine whether or not its consequences 
might involve the peace and safety of the country. The President 
having made his decision and carried out his policy, Congress and 
the country would be committed to it, regardless of consequences. 

This power of the President has been demonstrated in 
actual practice again and again. During a period of about twenty- 
five years (1823-1849), the Cuban policy of the Executive was con- 
sistently friendly to Spain and a guaranty of Spanish sovereignty; 
after the Mexican War that was changed to a policy whose chief end 
was the acquisition of Cuba by the United States, and in the de- 
velopment of which American diplomacy has been characterized as 
"agressive and intolerant"; while during the period after the Civil 
War, it was again changed to a policy of commercial and humani- 
tarian interest, culminating finally in actual intervention and 



El Benton' 8 Debates . VIII, 441. "But though neither Congress 
nor the courts may direct the President in the discharge of his 
constitutional powers, yet either the Senate or the House separete- 
ly, or both concurrently, may p8ss resolutions expressive of their 
desires in relation to questions of an international character, and 
the President may give such resolutions any weight he chooses, not- 
withstanding that they have no legal effect. Indeed, it is a part 
of the President's discretion to pay heed to such resolutions or 
not, as he elects." Corwin, The President's Control of Foreign Re - 
lations , 40. 

I 



23. 



2£ 

war. 

President Grant's handling of the Virgin ins incident in 
1873, President Cleveland's of the Venezuelan affair of 1897, and 
President Wilson's of the Mexican situation throughout the entire 
course of his administration, illustrate the power of the President 
both to bring on and to avert diplomatic crises. 23 Mention need 
only be made of such events as Washington's neutrality policy, the 
Monroe Doctrine, the annexation of Texas, the Mexican War, the 
Alabama Claims settlement, the acquisition of the Panama Canal, the 
Big Stick doctrine, our entrance into the war with Germany — "all 

these, and many more," says Corwin, "must be set down to the credit 

24- 

of executive leadership in the field of foreign relations." 

It may therefore be asserted that the Preeident, through 
his control of diplomatic intercourse, holds in his keeping the 
peace and safety of the United States, that he may initiate such 
diplomatic policies and so conduct diplomatic negotiations as to 
force the country into a war, "without any possibility of hindrance 
from Congress or the Senate". 



22 Benton, International Law and Diplomacy of the Spcnish - 
American War, 14-20; Rhodes. History of the United States . II.""35Q- 
354. See message of President Cleveland to Congress, Dec. 7, 1896; 
and President McKinley's statement of the grounds for intervention, 
in his message of Apr. 11, 1898, Richardson, op. cit .. IX, 719-721; 
X, 147. 

23 Rhodes, op. cit .. VII, 29-36; Chadwick, Relations of the 
United States and Spain: Diplomacy . 214-357. "In an hour, by this 
executive act (Cleveland's action in the Venezuelan affair), we are 
brought face to -"ace with a question of war with the leading power 
in Europe, and the danger of it passes away through a diplomatic cor 
respondence, for the issue of which the President was again alone 
responsible. The very ground of our interference in this quarrel 
of Venezuela what was it but a doctrine proclaimed, and indeed inff 
vented, by a President of the United States? The Monroe Doctrine 
has laid down the law for our hemisphere, and it was the single act 
of the executive department." Baldwin, Modern Political Institu - 
tions 105-106. 

24 The President's Control of Foreign Relations. 126; cf. Ford 
Rise end Growth of American Politics . 279. 260. 

85 Pa i rli-e ,jff^t-.— Admini&tr&t i < 



24 



A second phase of the President's control of foreign re- 
lations that should be considered in this connection is his power 
to recognize the belligerency or independence of new states and 
gove rnments . This power of recognition is not expressly granted 



by the Constitution, but is implied from the general power to enter 

into diplomatic relations with foreign countries through the making 

26 

of treaties and the exchange of accredited envoys. It is not 

conferred in terms upon any one department of the government, but 

27 

is now generally conceded as belonging to the Executive. In 



26 Constitution . Art. II, Sec. 2, CI. 2; Sec. 3; cf. Taft, 
Our Chief Magistrate end His Powers , 112-113; Story, Commentaries on 
the Constitution . II. 370-371. 



"5? In several cases the courts have declared the power of 
recognition to be vested in the "political department" of the govern! 
ment, without indicating clearly whether the executive or legis- 
lative department, or both, was meant. Rose v. Himely . 4 Cr., 241 
(1801); Gelston v. Hoyt . 3 Wheat., 246, 324. (1816); Foster v. geil- 



son, 2 Pet., 253, 307 (1829) ; Jones v. U. S. . 137, U. S., 202, 212 
( 1890) • However, in other cases, both the language and tone of the 
decisions are such as to show that the executive department is 
meant. U. S. v. Hutchings . 2 Wheeler's Criminal Cases, 543, cited in 
Sen. Doc. No. 56, 54 Cong., 2 Sess., 24; Williams v. Suffolk Ins . 
Co., 13 Pet., 415, 420 (1839); Kennett v. Chambers . 14 Uow. . 38. 
76", 50-51 (1852); U. S. v. Trumbull . 48 Fed.. 9ft. 104 (1891); 
The Stata . 56 Fed., 505, 510 (1893). 

See also Senate Document No. 56 . 54 Cong., 2 Sess., containing/ 
a report of the Senate Committee on Foreign Relations, presented 
to the Senate Jen. 11, 1897, in which, after an exhaustive investi- 
gation into the whole subject of recognition, it was held that the 
power of recognition rested properly with the President. In 1864, 
the Mexican situation brought about the passage of a House resolu- 
tion declaring that "Congress has a constitutional right to an 
authoritative voice in declaring and prescribing the foreign policy 
of the United States, as well in the recognition of foreign powers 
as in other matters"; and in 1896, a concurrent resolution was passef 
recognising a state of war in Cuba end offering the good offices 
of the United States for the recognition of Cuban independence. 
These resolutions were ignored by Presidents Lincoln and Cleveland, 
respectively, on the ground that recognition was a matter for the 
Executive alone. Cong. Globe . XXXV, Pt. I, 65, 67; Latane, America 
as a World Power . 9. 

The Joint resolution of 1898 authorizing intervention in Cuba, 
declared "That the people of the island of Cuba are, and of right 
ought to be, free and independent"; but authorities hold that this 
is a mere statement of policy and not to be regorded as a claim by 
Congress to the power of recognition." Benton, International Law 
and Diplomacy of the Spanish-American tfer , 99; Corwin. The PresT ^ 



4 



25. 



practice, recognition has always been extended as the exclusive act 

£8 

of the President. 

New states generally come into existence by breaking off 

from an actually existing state, and although recognition even in 

such cases is "a normal act, quite compatible with the maintenance 

of peaceful intercourse with the mother- country" , provided the new 

community has actually won its contest and successfully maintained 

£9 

its independence and separate existence, authorities agree that 

premature recognition is a wrong done to the parent state, that it 

amounts to an act of intervention, and may properly be considered 

30 

by the parent state as a cause for war. Through the exercise of 

this power the President is thus upon occasion enabled to determine 

the question of peace or war for the United States. 

The serious responsibility thus resting upon the President 

has been recognized on several occasions. When the South American 

provinces were clamoring for recognition in 1817, President Monroe, 

although sympathetic with their aspirations, evidently feared pos- 

31 

Bible complications with Spain, and in spite of pressure from 



dent 'g Control of Foreign Relations. 80-81 . 

Senator King (Utah) proposed a Senate resolution, May 23, 1919, 
for the recognition of the Omsk government of Russia, which seems 
to have been buried in oommittee, Cong. Record . 66 Cong., 1 Sess., 
(May 23, 1919), 154. 

28 For the manner in which recognition has been extended to 
other countries by the United States, see Senate Document No. 40 . 
54 Cong., 2 Sess. 

29 Lawrence, Principles of International Law (6th ed. ) 88 . 

30 Ibid . ; Hall. International Law (6th ed.J. 83; Moore *s 
Digest of International Law . T] TS~. 

31 See memorandum of questions submitted to his Cabinet, 
Oct. 25, 1817. Writings of James Monroe . VI, 31. 



£6 



Clay and his following- in Congress, declined to recognize these 

new states until he was satisfied thet Spain would not resent the 
33 

act with war. 

President Jackson, curiously enough, was likewise extreme- 
ly cautious about arousing the hostility of Mexico through a pre- 
mature recognition of Texas, declined to receive the Texan commis- 
sioners sent to Washington in March, 1836, to ask for recognition, 34 
and apparently was unwilling to take the sole responsibility in 
cases involving possible international complications. Referring to 
the Texas situation in his message of December 21, 1836, he spoke 
of the acknowledgment of a new state as independent as "at all times 
an act of great delicacy and responsibility, but more especially 
so when such state has forcibly separated from another of which it 
had formed an intergral part and which still claims dominion over 
it. A premature recognition under these circumstances, if not 
looked upon as a justifiable cause of war, is always liable to be 
regarded ss proof of an unfriendly spirit to one of the contending 

parties. " He therefore announced th&t he considered it "with the 
spirit o^the Constitution, find most safe", thrt the power of recog- 

32 Clay in 1817 mounted what John Quincy Adams called "his 
South American great horse", and by means of resolutions proposed by 
himself and his followers, kept 'he question of recognition of 
these provinces constantly before Congress from 1818 to 1822, in an 
effort to force the hand of the President. Memoirs of Jo^n Quincy 
Adams . IV, 26; Annals of Cong *. 15 Cong., 1 Sess., II, 1468, 1569, 
1646, 1652, 1655; ibid .. 16 Cong.. 1 Sess., II, 2223, 2229-2230; 

2 Sess., 1071, 1077, 1081, 1091-1092; ibid . . 17 Cone-., 1 Sess., I, 
854, 982. 

33 "The dela^ which has been observed in making a decision 
on this important subject will, it is presumed, have afforded an 
unequivocal proof to Spain, as it must have done to other powers, 
of the high respect entertained by the United States for her rights 
and of their determination not to interfere with them. . . It may 
be presumed that the successful progress of the revolution through 
such a long series of years . • . will reconcile the parent country 
to an accommodation with them on the basis of their unqualified 
independence." Messege to Congress, Mar. 8, 1822. Richardson, 

op. cit .. II, 116-118. 

34Reeves, American Diplomacy under Tyler and Polk . 78. 



27. 



nltion, when probably leading- to wr, should be exercised "with a 
previous understanding with that body by whom alone war can be de- 
clared, and by whom all provisions for sustaining its perils must 
be furnished." 35 

The Senate Committee on Foreign Relations, in its report 
of January 11, 1897, already mentioned, " although strongly up- 
holding the President's right to the power of recognition, empha- 
sized also the dangers involved in the exercise of that power, since 
the older nation might regard such recognition as a cause of war. 
The question whether a nation should recognize another, and thus 
risk going to war with a third, was stated to be largely a question 
of expediency, of which the Executive was the best qualified to 
judge, though it was added that "if recognition of such independence 
is liable to become a casus belli with some foreign power, • . • 
it is most advisable as well as proper for the executive first to 
consult the legislative branch as to its wishes and postpone its 
own action if not assured of legislative approval. If, on the other 
hand, the Executive did not consider that the time had arrived to 
act, expressions of opinion by the legislature should be made with 
some caution." 

It seems therefore to be the general consensus of opinion 
that, while the power of recognition belongs properly to the presi- 
dent, it is a poorer that may easily involve serious complications 
with foreign nations, and in such cases should be exercised with 
due regerd for the wishes of that branch of the government whose 
function it is to declare war. It should be noted, however, that 
any action of Congress would be merely advisory, that the whole 
power rests with the President alone. "It is the proper province 

35 Richardson, op. cit .. Ill, 266-267. 

36 S enate Document No. 56 . 54 Cong., 2 Sess., 2. 

== 



28. 



of the Executive to refuse to be guided by 8 resolution on the part 

of the legislature, if, in his judgment, to do so would be unwise. 

The legislature may express its wishes or opinions, but may not 
37 

c ommand . n 

Prom his power to receive and send accredited envoys, the 
President also derives the power to withdraw the diplomatic repre- 
sentatives of the United States at his pleasure, or dismiss those 
of foreign powers, and thus sever all relations with any particular 
country — a power which a distinguished authority has said "may 
be so exercised as to produce most momentous results."^® 

This power to sever diplomatic relations is a power that 
has always been considered as peculiarly within the province of the 
President, and until very recently no attempt was ever made by Con- 
gress to assert any authority in that respect. However, the unset- 
tled condition of affairs in Mexico, and the opinion of some people 
that President Wilson was being too patient in his handling of 
Mexican affairs, led to the introduction by Senator Pall (Hew Mexi- 
co), on December 3, 1919, of a concurrent resolution requesting the 



37 Willoughby, On the Const itut ion . I, 462; of. Corwin, op. 
cit . . 82. "It is not, indeed, a power likely to be abused, though 
it is pregnant with consequences often involving the que st i on of 

f eace or war . And, in our own short experience, the revolutions 
n Prance , and the revolutions in South America, have already 
placed us in situations to feel its critical character, and the 
necessity of having at the head of the government an executive 
of sober judgment, enlightened views, and firm and exalted patrio- 
tism." Story, Commentaries , II, 371. 

38 Burge se. Politicel Science and Comparative Constitutional 
Law , II, 251. Hamilton did not seem to appreciate the tremendous 
possibilities in the exercise of this power, especially to receive 
ministers, for he passed it by with this brief comment: "This, 
though it has been a rich theme of declamation, is more a matter 
of dignity than of authority. It is a circumstance which will be 
without consequence in the administration of the government." The 
Federalist . No. 68 (Goldwin Smith ed., pp. 383-384.) 



£9. 



President to withdraw recognition from the Carranza Government end 

"to sever all diplomatic relations now existing between this Govern- 

39 

ment and the pretended Government of Carranza". 

Though this resolution clearly went "beyond the traditional 
view that the President elone has the entire responsibility for de- 
ciding whether or not diplomatic relations should at any time be 
severed, there seemed to be a disposition on the part of the Foreign 
Relations committee of the Senate to recommend it favorably and 
push it to a vote. President Wilson, however, in a letter of Decem- 
ber 8, 1919, to Senator Fall, vigorously asserted the power and 
responsibility of the Executive in this matter, expressing himself 
as follows: "I should be gravely concerned to see any such resolu- 
tion pass the Congress. It would constitute a reversal of our con- 
stitutional practice, which might lead to very great confusion in 
regard to the guidance of our foreign affairs. I am convinced that 
I am supported by every competent constitutional authority in the 
statement ^hat the initiative in directing the relations of our 
Government with foreign Governments is assigned by the Constitution 
to the Executive, and to the Executive only. Only one of the 
Houses of Congress is associated with the President by the Constitu- 
tion in an advisory capacity, and the advice of the Senate is pro- 
vided for only when sought by the Executive in regard to explicit 
agreements with foreign Governments and the appointment of diplo- 
matic representatives who are to speak for this Government et 
foreign capitals. The only safe course, I am confident, is to ad- 
here to the prescribed method of the Constitution. We might go 
very far afield if we departed from it." 40 

39 See text o* resolution in W. Y. Times . Dec. 4, 1919. 

40 H. Y. Times . Dec. 9, 1919. 



30 



Upon receipt of this letter, Senator Lodge, chairman of 

the Senate Committee on Foreign Relations, immediately announced 

that the committee would not push the Pall resolution, hut would 

leave the entire responsibility for the Mexican situation with the 

President, thus virtually acknowledging the soundness of the Presi- 

41 

dent's position. 

The breaking of diplomatic relations, while not in itself 

an act of war, and not necessarily resulting in war, is meant to be 

42 

a marked affront and generally does lead to war. President Wil- 
son thus understood very well, as did the whole country, that his 
action, on February 3, 1917, in dismissing the German ambassador 
to the United States and recalling Ambassador Gerard from Berlin, 
was very likely the first step towards actual war, although in his 

address to Congress on that date he expressed himself as hopeful 

43 

that further complications might be avoided. 

Finally, the President may to a considerable extent deter- 
mine questions relating to the peace of the United States through 
his power to enter into so-called execut Ive agreements with other 



41 "Of course the committee will do nothing now. The Presi- 
dent desires complete responsibility for the Mexican situation to 
rest on him. Let it rest there. We desired only to assist him; 

he does not wish us to do so. He does not even allow us to express 
our support or make a suggestion. The committee will not again 
consider the resolution. We are through." Statement of Senator 
Lodge. N. Y. Times Dec. 9, 1919. 

42 See T. S. Woolsey, "The Beginning of War", Proc. Am. Pol . 
Sci. Assn. . I, 54-68, esp. 57-60. 

Diplomatic relations with Brazil were severed in 1827 and with 
Mexico in 1858, but in each case were very shortly restored without 
any intervening complications; with Mexico they were broken off 
also in 1836, and continued broken for three years, without war; 
relations between Turkey and the United States were severed Apr. 
20, 1917, but war was never declared between the two countries. 
Reeves, American Diplomacy under Tyler and Polk . 76; Moore's Digest . 
VII, 103-105; H. Y. Times Current ■gist. Mag .. VI. 437. 

43 See text of address in McKlnley. Collected Materials for 
the Study of the War . (1st ed.), 11-12. 



31. 



powers. The Constitution requires that treaties can only he made 

44 

by the President by and with the advice and consent of the Senate, 
but "treaties" by no means include every sort of international 
arrangement entered into. Agreements of various sorts, some con- 
cerning only minor and routine matters, others on matters of con- 
siderable importance and delicacy, are frequently made by the 
President without the knowledge or consent of the Senate, and are 

4 

by long practice considered to be within the range of his authority. 

Such agreements, although not a part of the "supreme law of the 

land", as ere treaties, nevertheless are considered binding upon 

the administration making them, but not upon succeeding administra- 
46 

tions. As a matter of fact, most of these agreements covering 

matters of any considerable importance have been respected by the 

successors of those making them, and have by general consent come 

have the effect of a settled law. 

Such executive agreements take the various forms of a 

protocol, a modus Vivendi, an exchange of notes or memoranda, or a 

mere "gentlemen's agreement", and are entered into by the President 

by virtue of his powers as Commander-in-Chief or of his diplomatic 
47 

powers. As an example of executive agreements based upon the 
first class of powers may be mentioned the agreement of 1817 with 
Great Britain for the limitation of naval armaments on the Great 
Lakes. 

This agreement was brought about by an erohange of notes 
between the British minister at Washington (Mr. Bagot ) and the 

44 Art. II, Sec. 2, CI. 2. 

45 J. B. Moore, in Pol. Sci. Quar .. XX, 388-390; Ogg & Beard, 
National governments and the World war , 102. 

4"6 Butler, The Treaty-Making Power of the United States . II, 
370; Angaries v. Bayard , 127 U. S., 251, 261 (1888). 

47 Corwin, The President's Control of foreign Relations. 116. 



I • .... ... ' ' 

X»ao it curiam ' r *> J'roa ^xtTt 



32. 



Acting- Secretary of State (Mr. Rush), and provided that neither 
party should keep in service on Lakes Charaplain and Ontario more 
than one, and on Lake Erie and the upper lakes more than two armed 

vessels, none of these to be armed with more than one cannon, and 

48 

all other armed vessels of both parties to be dismantled. Al- 
though President Monroe nearly a year later submitted the arrange- 

49 

ment to the Senate for its approval, this action was merely per- 
functory, since the agreement had become effective immediately 
after the date of the original exchange of notes (April 28-29, 1817), 

through orders issued by the Secretary of the Navy to the naval of- 

50 

ficers commanding on the Great Lakes. The arrangement was defi- 
nitely undertaken as a measure to preserve the peace between the 
two countries, and remains to this day as a striking example of 
what may be done twoards that end by purely Executive action. 

Another agreement between these two countries of some- 
what similar import with respect to armament was entered into by 



48 Am. State Papers. For. Rel .. IV, 205-206. 

49 Message to the Senate, Apr. 6, 1818, Ibid . . 202. John Quin 
cy Adams says on Jan. 14, 1818, that the President did not think 

it necessary to communicate the arrangement to Congress. Memoirs , 
IV, 41. The Senate gave its approval Apr. 16, 1818, following " 
which the President issued a formal proclamation April 28, announc- 
ing that the agreement was in effect. Am. State Papers, ffor. Rel .. 
IV, 207. 

50 The terms of the agreement were communicated by Mr. Rush 
to Secretary of the Navy Crowninshield on Apr. 30, 1817, and the 
necessary orders were issued by the latter May 2. Ibid . . 206-207. 

51 "The President (Madison), being satisfied that, if each 
nation should maintain on the l8kes a naval foree, it would expose 
both to considerable and useless expense, while it would mult iply 
tre risks of collision between them , instructed Mr. Adams, shortly 
after the peace, to make the proposals ... in the hope that it 
might be carried into immediate effect." Monroe to Bagot, Aug. 2, 
1816, Ibid . . 203. "This arrangement for mutual disarmament on the 
lakes has undoubtedly been the greatest single factor in the con- 
tinuance of peaceful relations between the United States and Great 
Britain during the last one hundred years." Updyke, Diplomacy of 
the War o* 1812 . 465-466. 



33. 



means of a protocol signed at London, December 9, 1850, by the Unite 
States minister (Abbott Lawrence) and Lord Palmerston, under which 
the British government ceded Horseshoe Reef in Lake Erie to the 
United States, the latter agreeing to erect a light-house but to 
maintain no fortifications * The agreement was ratified by an ex- 
change of notes in London, February 10, 1851, with no formal ratifi- 
cation on the part of either country, and the light- house was 

erected in 1856 upon appropriation of the necessary funds by Con- 
52 

gress. 

In 1859 a dispute between the United States and Great 

Britain over the island of San Juan off the Pacific coast, which 

threatened to cause serious difficulty between the two countries, 

was settled by an agreement, reached through an exchange of notes, 

53 

for joint military occupation of the island. This arrangement, 
which continued until the entire island was given over to the 
United States under an arbitral decision in 1873, was upheld by the 
courts as a proper exercise of Executive authority, even to the ex- 
tent of modifying, in the interest of peace , existing statutes for 

54 

the government of the disputed territory. 

Perhaps the most remarkable exercise of the President's 
power to make international agreements without the consent of the 
Senate, by virtue of his authority as Commander-in-Chief, is the 



. * . • 



52 J. B. Moore, in Pol. Sci. Quar .. XX, 390. 

53 Crandall, Treaties: Their Making and Enforcement . 106; 
Foster, Practice of Diplomacy . 321. 

54 "The power to make and enforoe such a temporary convention 
respecting its own territory is a necessary incident to every nation 
al government, and adheres where the executive power is vested 
This particular convention should be allowed to modify for the 
time being the operation of the organic act of this Territory, so 
fsr forth as to exclude to the extent demanded by the political 
branch of the government of the United States, in the interest of 
peace, all territorial interference in the government of that island 
Watts v.U.S., 1 Wash. Terr. ,288, 294 ( 1670 ), quoted in Crandall, op. c it 



106-107. 



34, 



protocol concluded September 7, 1901, between Chine end the Allied 
Powers thet had intervened during the Boxer uprising. This proto- 
col required reparation for the murder of the German minister, and 
punishment of the principal authors of the outrages committed 
against foreigners during the uprising; prohibited to China the im- 
portation of arms and ammunition or of materials used exclusively 
for their manufacture; demanded an indemnity of 450,000,000 taels; 
constituted an extraterritorial quarter for the foreign legations 
in Peking; permitted temporary occupation by the Powers of certain 
strategic points; and required numerous undertakings on the part 

of China, especially with regard to the conduct of her foreign rela- 
55 

tions. 

This protocol was signed on the part of the United States 
by W. W. Rockhill, whose appointment as special commissioner to 
China had not been submitted to the Senate; it went into effect 
without any further ratification, the whole matter thus being carrier 
on and concluded by authority of the Executive alone. 

It is now authoritatively recognized that the President, 
without legislative authority, but solely by virtue of his powers 
as Commander-in-Chief, m&y permit or refuse the entry of foreign 
troops into the United States. By virtue of the same authority, 
arrangements wero made with Mexico in 1882, through an exchange of 

55 See text of protocol in For. Rel . 1901, App., 312-318. 
Poster calls this "probably the broadest exercise of executive 
authority in -foreign matters without the concurrence of the Senate." 
Practice of Diplomacy . 318. 

55 Tucker t, ~A1 e XS nd rof f . 183 U. S., 424, 435 (1902). Cf. 
Washington's refusal to permit British troops to cross United States 
territory in 1790, and the opinions of his Cabinet on the question. 
7/ r it i n ps o f ge o rge Wo sh i ngt on . XI, 497, n. ; Writings of Thomas Jef - 
ferson. V. 238-259; Works of Alexander Hamilton , IV. 20-49; Life 
and Works of John Adams . VIII. 497-500. 



35. 



notes, for the reciprocal passare of troops across the border in 

pursuit of hostile Indians. It is worthy of note thet the Mexican 

Executive was distinctly authorized by the Mexican Senate to permit 

such crossing of troops, while in the United States the terms of the 

agreement were referred, not to the Senate, but to the General of 

57 

the Array, and approved by him and the Secretary of War. These 
arrangements were renewed at various times, ^® and form the basis 
for the attempted agreements of like nature during the border trou- 
bles in 1916. 59 A similar arrangement with Great Britain for the 
reciprocal crossing of the Canadian boundary was proposed by Secre- 
tary Frelinghuysen in 1883, but was rejected by Canada on the 
ground that it involved the "risk complications worse than that 
of Indian raids." 60 

Among executive agreements entered into by virtue of the 
President's diplomatic powers, and dealing with matters causing 
considerable dispute, difficulty, and possible complications, may 
be mentioned an agreement of 1865 with Great Britain, reached by an 

61 

exchange of memoranda, with regard to the fisheries question; a 



57 For. Rel. 1882. 396-397, 405, 419-426. The memorandum 
signed by Secretary Frelinghuysen and Minister Romero stated that 
since the Mexican Senate had authorized the President of Mexico to 
allow the passing of Mexican troops into the United States and of 
United States troops into Mexico, "and the Constitution of the 
United States empowers the President of the United States to allow 
the passage without the consent of the Senate, this agreement does 
not require the sanction of the Senate of either country, and will 
begin to take effect twenty days after this date (July 29, 1882)." 

58 June 28,1883; Oct. 31, 1884; Oct. 16,1885; June 25,1890; 
Nov. 25, 1892; June 4, 1896. 

59 H. Y. Times Current Hist. Mag. . IV, 403, 616, 618-619, 627. 

60 See report of the Indian Commissioner for the Northwest 
Territories (Canada). For. Rel. 1883, 528 . 

61 For. Rel. 1885 . 460-469. "This agreement proceeds from the 
mutual good-will of the two governments, and has been reached solely 
to avoid all misunderstandings and difficulties which might other- 
wise arise from the abrupt termination of the fishing of 1885 in the 
midst of the season." Statement of Secretary Bayard. Ibid . . 460. 





36. 



modus Vivendi with the same country in 1899 fixing a provisional 

boundary between Alaska and Canada; the protocol of 1873 settling 

the Virginius affair with Spain; 63 Secretary of War Taft's adjust- 

64 

ment of the boundaries of the Panama Canal Zone; and the Root- 

Takahira and Lansing- Ishii agreements of 1907 and 1917, respective- 
ly 65 
ly. 

The action of President Roosevelt in 1905 with regard to 
Santo Domingo is especially noteworthy in this connection, in that 
a treaty was first negotiated providing that the United States 
should guarantee the integrity of that country, take charge of its 
customs, and settle its obligations; and when this treaty failed 
of ratification in the Senate, President Roosevelt nevertheless 
put its terms into effect through a modus Vivendi. For two years 
the affairs of that island were administered under the sole autho- 
rity of this executive agreement, until in 1907 the Senate yielded 

66 

and ratified a slightly revised treaty. 



62 For. Rel. 1899 . 328-330. 

63 Crandall. op. cit .. 107-108. 

64 "I had no power to make a treaty with Panama, but I did 
have, with the authority of the President, the right to make rules 
equivalent to law in the Zone. I therefore issued an order direct- 
ing the carrying out of the plan agreed upon, in so far as it was 
necessary to carry it out on our side of the line, on condition 
that, and as long as, the regulations to be made by Panama were en- 
forced by that government. This was approved by Secretary Hay and 
the President, and has constituted down until the present day, I 
believe, the basis upon which the two governments are carried on 

in this close proximity. It was attacked vigorously in the Senate 
as a usurpation of the treaty-making power, and I was summoned be- 
fore a committee in the Senate to justify what had been done. There 
was a great deal of eloquence over this usurpation by Mr. Morgan 
and other Senators, but the modus Vivendi continued as the practi- 
cal agreement between the nations for certainly more than seven 
years, and my impression is that it is still in force in most of 
its provisions." Taft, Our Chief Magistrate and his Powers . 111-112 

65 For. Rel. 1906. 510-512; Am. Jour. Int. Lew . XIT r Sum). 1-3. 

66 Latane. America as a 7/orld Power . 280-281; J. B. Moore, in 
Pol. Sci. Quar .. XX. 386-387; Roosevelt. Autobiography . 551-552. 



37. 



The President is thus enabled, through his power of enter- 
ing into these executive agreements which do not require the sanc- 
tion of the Senate, to assume complete responsibility for the 
handling of matters of almost every variety in the field of foreign 
relations, many of which involve complications and delicate ques- 
tions that might easily affect the peace and safety of the United 
States. 



38. 



Chapter III. 
Military Measures Short of War . 

By virtue of his position as Commander- in-Chief , as well 
as by authority of other constitutional and statutory provisions, th< 
President may undertake numerous military measures that are short 
of actual war. In the first place, there are many instances in 
which he may employ the armed forces to aid the civil authorities 
within the United States. Thus, for example, the constitutional 
clause guaranteeing to every state a republican form of government 
and protection against domestic violence, 1 is held to give the Presi- 
dent power to use troops, without special legislative sanction, when 
needed for those purposes, and even to anticipate and prevent local 
disturbances by a show of force. 

In 1878 an attempt was made to restrict the President's 

povrer to use the armed forces in executing the laws of the United 

States through an act of Congress forbidding the employment of the 

army as a posBe comitatus . except as expressly authorized by the 

Constitution or by statute. It has been held, however, in spite 

of that statute, thet the provisions of the Constitution vesting 

the President with the executive power and making it his duty to 

4 

"take care that the laws be faithfully executed", must be construed 
as giving to the President the general power of enforcing the laws 
and the "peace of the United States" by any means that he may find 

1 Art. IV, Sec. 4. 

2 Lieber, The Use of the Army in Aid of the Civil Povrer . 30- 
37, 45; Wlnthrop. Abridgment of Military Law (2nd ed.) t 336-337. 
Cf. the sending of troops under Gen. wood to Gary in 1919 to pre- 
vent disorder during the steel strike. 

3 Act of June 18, 1878. 20 Stat, at L., 146, 152 (Sec. 15). 

4 Art. II, Sec. 1, CI . 1; Sec. 3. 



39. 



necessary. "Congress may, by disbanding the Army, render it impos- 
sible for the President to resort to his constitutional power as 
executive and commander-in-chief of employing the Army in aid of 
the civil power, in the execution of the laws, or may couple an ap- 
propriation for the support of the Army with a condition as to the 
use of the money appropriated; but, if it be true that the Consti- 
tution directly vests the President with (this) duty and power • . , 
Congress cannot make the exercise of such power illegal. It may pre 
vent its exercise, but it cannot make it illegal."** 

Thesr const ituional powers are also reinforced by statutory 
authorization to use the armed forces in aid of the civil power in 
several specific instances. Thus the President is expressly em- 
powered to employ the land or naval forces to such extent as may be 
necessary for the protection of civil rights; for carrying out the 
guarantees to the Indians; for the preservation of the public lands 

and forests; and for the enforcement of the laws with respect to 

7 

quarantine, extradition, and neutrality. 

In none of these instances should the exercise of his 
powers by the President cause any difficulties or complications with 
foreign nations, except in the case of the enforcement of the neu- 
trality laws of the United States. In this connection, mention need 
only be made of such incidents as Washington's famous neutrality 

6 Lieber, op. clt. . 14, 37, 40, 56; Ex parte Slebold . 100 
U. S., 371, 394-395 (1879) ; In re Neagle . 135 U. S., 1, 63-64, 67, 
69^?#Cf. President Cleveland's use of troops in Chicago during the 
railroad strike of 1894, over the protest of Gov. Altgeld. 

6 Lieber, op. eit. . 56-67. See also opinions of ex-Attorney 
General Miller and Senator Edmunds. Ibid . t 15 n. , 43; cf. Pomeroy, 
Constitutional Law (Bennett ed.) . 537-538. 

7 U. 5. RevT Stats. . Sees. 1984, 1969; 2118, 2147, 2150-2152; 
2460, 5596; 4792, 5275; S3 Stats, at I. . 322; 31 ibid., 618; 35 
ibid . . 1088, 1089. These are conveniently listed in Army Regula. 

tlons (ed.1917) . 106-109. 



40 



proclamation of 1793, ■ the Fenian invasion of Canada in 1866, y the 
numerous filibustering expeditions against Cuba and other coun- 
tries, 1 and the strong feeling of the Central Powers against the 
manner in which the neutrality of the United States was enforced 
during the first years of the recent world war, to indicate the 
delicate nature of the President's responsibility in this regerd, 
and the possible international complications that may result. 1 ^ 

The President has also been empowered on some occasions, 
and on other occasions has exercised the power without specific 
authority, to undertake military measures for the protection of the 
so-called "inchoate interests of the United States — measures that 



involve a considerable interference with the rights of other nations 
and are therefore fraught with serious possibilities. As early as 
January 15, 1811, a resolution of Congress asserted the peculiar 
interest of the United States in the Spanish province of Florida 
and declared, "That the United States, under the peculiar circum- 
stances of the existing crisis, cannot, without serious inquietude, 
see any part of the said territory pass into the hands of a foreign 
Power; and that a due regard to their own safety compels them to 



8 The first neutrality law of the United States was not passed 
until 1794, hence Washington's proclamation was based not on statu- 
tory authority, but on the obligations of neutrality as defined in 
the law of nations. Writings of George Washington . XII, 281-282. 
Cf. with Wilson's proclamations of neutrality in 1914. U.S.Stats . . 
63 Cong., 2 Sess., Pt. 2, Procs., 62 ff. 

9 For an excellent account of this incident, together with the 
complications it involved, see Oberholtzer, History of the United 
States since the Civil War , I, 524-537, esp. 528, 532, 534-535. 

TT5 Latane\ America as a World Power . 8-9; Chadwick, Relations 
of the United States and Spain: Diplomacy , 411-426; Smith, Parties 
and Slavery . 251-256. 

11 President Polk in 1848 found it difficult to reconcile his 
frank sympathy for the Irish with his duty to enforce the neutrality 
laws against American citizens aiding the Irish revolt, and when 
called upon by the British government to act, hesitated in the hope 
that the issue might be evaded. With regard to the expedition of 
the so-called "Buffalo Hunters" against Mexico in the same year, he 
had no such qualms, but immediately sent instructions to Gen. Tay- 



41. 



provide, under certain contingencies, for the temporary occupation 
of the said territory; they, at the same time, declare that the said 
territory shall, in their hands, remain subject to future negotia- 
tion. ■ 

Following out the sentiment of this resolution, an act of 
the same date authorized the President, by means of the military 
and naval forces, to take possession of, hold, and occupy the terri- 
tory of East Florida, if necessary to prevent its occupation by any 
foreign government, and to establish a temporary government over that 

region; while another act of February IE, 1813, authorized him to 

1£ 

take similar action with regard to West Florida. 

As a result of these acts, Amelia Island in East Florida, 
captured from the Spanish in 1811 by a party of so-called "patriots'* 
assisted by a few American troops and gun-boats, was held by the 
United States and subject to regulations imposed by American offi- 
cers for more than a year; while in East Florida, the city of Mobile 

was seized by General Wilkinson in 1813, under orders from the 

13 

President, and never surrendered. 

Again in 1819, the treaty ceding Florida to the United 



lor to use such military force as was necessary to check the move- 
ment. Diary of James K. Polk . IV, 104-106, 109, 112. 

12 These are the famous "secret laws" referred to by John 
Quincy Adams as "those singular anomalies of our system which have 
grown out of that error in our Constitution which confers upon the 
legislative assemblies the power of declaring war'. 1 He also says 
that there are four of these secret laws and one resolution; "and 
one of the laws, that of 25th June, 1812, is so secret that this day 
it could not be found among the rolls at the Department". Memoirs , 
IV, 32 (Dec. 30, 1817). The act of 1812 referred to by Adams has 
apparently not yet been found or published, while the fourth law to 
which he refers is probably that of Mar. 3, 1811, which placed the 
ban of secrecy on these acts, including itself. The injunction of 
secrecy was removed July 6, 1812, but the laws were not published 
until 1818. See Annals of Cong . .15 Cong.,1 Sess.,11, App. , 2601-2604, 

13 Thomas. Military Government in Newly Acquired Territory of 
the United States. 55-56*. 

i 



42. 



States having "been signed, but not yet ratified by Spain, President 

Monroe suggested to Congress that the interests of the United States 

in Florida were such that he should be authorized to occupy that 

territory and carry out the provisions of the treaty as if it were 
14 

in effect. Military measures for the occupation of Florida were 
contemplated, even to the extent of reducing St. Augustine by "regu- 
lar siege , if necessary, but fortunately for the peace of the 
two countries, Congress did not see fit at that time to authorize 
such action.* 6 

The right of the President to undertake military measures 

for the protection of these "inchoate interests" of the United Staten, 

even without legislative sanction, was apparently first asserted in 

1844. In that year President Tyler, having entered into negotiations 

with Texas for its annexation to the United States, ordered such a 

concentration of the land and naval forces as to protect Texas 

against the danger of a Mexican invasion while the treaty of annexa- 

17 

tion was under consideration in the Senate. In response to a 
Senate resolution of inquiry, the President defended his action by 
declaring it as his opinion "that the United States having by the 
treaty of annexation acquired a title to Texas which re quired only 
the action of the Senate to pe rf eot it . no other power could be per- 
mitted to invade and by force of arms to possess itself of any por- 
tion of the territory of Texas pending your deliberations upon the 
treaty without placing itself in a hostile attitude to the United 

14 Message of Dec. 7, 1819. Richardson, Messages and Papers 
of the Presidents. II, 57; cf. Memoirs of John Quincy Adams , IV, 480. 

15 Jameson, "Calhoun Correspondence" . in Report. Am. HigL Assn , 
1899 . II, 164-165, 165-166. 

16 The act for carrying the treaty into effect was passed 

Mar. 3, 1821, while the exchange of ratifications occured in February. 

17 Corwin. The President's Control of Forelpn Relat ions , 156 ; 

Re eve s. American Diplomacy u nder Tyler and Polk . 169 ;Richardson. op.cit t, 



43 



States and justifying the employment of any military means at our 

disposal to drive back the invasion. "18 

In spite of vigorous denunciation of this action in Con- 

19 

gress and a threat of impeachment against President Tyler, the 
same doctrine of an inchoate interest in Texas was advocated by 
President Polk. He declared that H the moment the terms of annexa- 
tion offered by the United States were accepted by Texas the latter 

became so far a part of our country as to make it our duty to afford 

20 

such protection and defense"; and therefore, in May, 1845, he or- 
dered General Taylor to cross into Texas Jbo protect it pending an- 
21 

nexat ion . Clearly, the action of President Polk had more basis 
than that of President Tyler. Tyler considered himself empowered 
to protect territory whose acquisition was merely proposed in a 
treaty not yet ratified, and which, in fact, failed of ratification; 
while Polk's action had at least the justification that the annexa- 
tion of Texas was then an assured fact, although at thft time not 
formally in effect. 

President Grant's policy with regard to Santo Domingo 
(1869-1871) likewise involved the principle of an inchoate interest 



18 Message to Senate, May 15, 1844. Richardson. op. cit ♦ . IV. 317. 

19 Reeves, op. cit .. 163. Senator Benton replied to the 
President's message as follows: "This is a reversal of the power 
of the Senate, and a reading backwards of the Constitution. It 
makes an act of defeasance from the Senate necessary to undo a 
treaty which the President sends to us, instead of requiring our 
assent to give it validity. It assumes Texas to be in the Union, 
and protected by our Constitution from invasion or insurrection, 
like any pert of the existing States or Territories; and to remain 
so till the Senate puts her out by rejecting the treaty! This, in- 
deed, is not merely reading, but spelling the Constitution back- 
wards! It is reversing the functions of the Senate and making it 

a nullifying, instead of a ratifying body." Cong. Globe . XIII, 
At>p., 498 (28 Cong., 1 Sess., June 1, 1844). 

£0 Message to Congress, Dec. 2, 1845. Richardson, op. cit .. 
IV, 388. 

21 Ibid . . 388-389; Reeves, op. cit .. 277. 



44. 



on the part of the United States which the President was empowered 
to protect. Having negotiated with President Baez a treaty of an- 
nexation by a most unusual method and almost without the knowledge 
of his Cabinet, Grant sent a strong naval force to the island to 
protect it from invasion and from internal disorder, not only dur- 
ing the consideration of the treaty by the Senate, but even after 
its rejection . on the ground that "the Government of the United 
States is peculiarly interested in the exemption of the Dominican 
Republic both from internal commotions and from invasions from 
abroad." 23 

The President's action was severely condemned on the floor 
of the Senate, especially by such men as Sumner and Schurz. Schura 
declared the doctrine that the President could, by making a treaty, 
create en inchoate right to some foreign territory, and then, with- 
out authority from Congress, commit acts of war -*or the enforcement 
of that inchoate right, to be "the hugest absurdity, the most auda- 
cious preposterosity , the most mischievous, dangerous, and anti- 
republican doctrine that ever was broached on the floor of the 
Senate ," 24 

Senator Sumner likewise bitterly scored the action of the 
President, and offered a resolution condemning the employment of the 
Havy without the authority of Congress against a friendly foreign 
nation or in belligerent intervention in the affairs of a foreign 
nation, as "an infraction of the Constitution of the United States 

2E Rhodes, History of the United States . VI, 346-354; Corwin, 
op. cit .. 156. For Grant's instructions to the U. S. naval offi- 
cers, see Moore's Digest of International Law . I, E78. 

23 Secretary of State Pish to Mr. Bessett, minister to Hayti, 
Nov. 16, 1870. Moore *8 Digest, I, 279. The treaty had been reject- 
ed June 30, preceding. 

24 Cong. Globe . 42 Cong., 1 Sees., Pt. II, App., 52. 



45. 



and a usurpation of power not conferred upon the President. n The 
resolution further declared, "That while the President, without 
any previous declaration of war by act of Congress, may defend the 
country against invasion by foreign enemies, he is not justified 
in exercising the same power in an outlying foreign island, which 
has not yet become part of the United States; that a title under an 
unratified treaty is at most inchoate and contingent, while it is 
created by the President alone, in which respect it differs from any 
title created by act of Congress; and since it is created by the 
President alone, without the support of law, whether in legislation 
or a ratified treaty, the employment of the Navy in the maintenance 
of the Government there is without any excuse of national defense, 
as also without any excuse of a previous declaration of war by Con- 
gress. " 

However, other Senators, such as Harlan (Iowa) and Morton 

(Indiana) came to the defense of the President, and Sumner's reso- 

26 

lution was laid on the table by a large majority (39-16), so that 
there would seem to be some point to Professor Corwin's remark about 
Harlan's argument that it "at least demonstrated the futility of at- 
tempting to confine the President's protective function to the mere 

27 

duty of repelling invasion or immediate physical attack" • 

President Roosevelt's action in 1903 in preventing the 
interference of Colombia in the Panama revolution was likewise based 

25 Cong. Globe . 42 Cong., 1 Sess., Pt. I, 294. 
£6 Ibid .. 5297 

27 The President's Control of Foreign Relations . 160. Presi- 
dent Roosevelt's action with regard to Santo Domingo in 1905 was 
similar to that of President Grant in that the contemplated measures 
were undertaken even after a treaty authorizing them nad been re- 
jected. Roosevelt's action, however, was not based on the doctrine 
of inchoate interest, but seems to be more properly classified under 
the policy of police supervision. Infra . , 51 ; cf. also supra . , 36. 



46 



on the ground of an inchoate interest on the part of the United 
States in the Panama Canal and therefore in the success of the 

go 

revolution. 

The President may also on his own authority undertake 
military measures for the protection of American rights and interest; ; 



£9 

broad. This power was exercised in 1853 in the famous Koszta 



incident, when liartin Koszta, a native of Hungary who had become an 
American declarant (not yet fully naturalized) but who had been 
seized at Smyrna at the instigation of the Austrian authorities, was 
released through the vigorous action of an American navel captain 
in training his guns upon the Austrian vessel on which Koszta was 
held. The incident caused considerable excitement and was protested 
by the Austrian government; but Captain Ingraham's action was sus- 
tained by public opinion, by Congress, and by the Executive, Secre- 
tary of State Marcy laying down the principle that any individual 
"clothed with our national character" is entitled to claim the pro- 
tection of this government, "and it may respond to that claim with- 
out being obliged to explain its conduct to any foreign power; for 
it is its duty to make its nationality respected by other nations 
and respectable in every quarter of the globe. "^ 

Another demonstration of this power occurred a year later 
(1854), when Greytown (San Juan), in Nicaragua, was bombarded "un- 
til the town was laid in ashes", in default of reparation demanded 

31 

for an attack on the United States consul. This action was ap- 



28 See Jones, Caribbean Interests of the United States . 199- 
203; Roosevelt, Autobiography , 553-569. 

29 Corwln. op. cit ., 142; Root, Military and Colonial Policy 
of the United States. 157-158. 



30 Rhodes. History of the United States . X, 416-419. The Supren 3 
Court also referred to This incident with approval in a decision 
rendered some years later. In re fleagle . 135 U.S., 1, 64 (1890). 
31 Rhodes, op. cit ., II, 9-10. 



47. 



proved and defended before Congress by President Pierce, and later 
upheld by the courts, Justice Nelson declaring that it is to the 
President, as the Executive head of the nation, that citizens abroad 
must look for protection of person and property, and that, for this 
purpose, "the whole Executive power of the country is placed in his 
hands, under the Constitution, and the laws passed in pursuance 
thereof; and different Departments of government have been organized, 
through which this power may be most conveniently executed, whether 
by negotiation or force — a Department of State and a Department 
of the Navy." He further declared that the duty of such interposi- 
tion abroad, for the protection of the lives or propery of the 
citizen, "must, of necessity, rest in the discretion of the Presi- 
dent". 33 

The attack by American war vessels upon the Barrier forts 

34 

of China in 1856, in order to avenge an alleged insult to the flag, 
undertaken without authority of Congress, was apparently approved 
even by the cautious Buchanan, although further active participation 
in a military expedition into Chinese territory was declined as be- 
yond the authority of the President alone to undertake. Secretary 
Cass thus stated the position of the administration: "Our naval of- 
ficers have the right — it is their duty, indeed -- to employ the 
forces under their command, not only in self-defense, but for the 
protection of the persons and property of our citizens when exposed 
to acts of lawless outrage, and this they have done both in China 
and elsewhere, and will do again when necessary. But military ex- 
peditions into the Chinese territory can not be undertaken without 

38 Message to Congress, Dec .4, 1854. Richardson. op. cit . .V, 280-26'l. 

33 4 Blatchford, 451, 454, quoted in Corwin, op. cit .. 144. 

34 For account of this affair, see Foster, American Diplomacy 
in the Orient. 225-227. 



48. 



the authority of the National Legislature." 36 

President Buchanan also, without authority from Congress, 
ordered a naval force to Cuban waters with directions "to protect 
all vessels of the United States on the high seas from search or 
detention by the vessels of war of any other nation". A conflict 
with Great Britain was avoided only the the letter's abandonment of 
her claim to the right of visit and search in time of peace. 36 

Even the qualification upon the President's powers admittec. 
by Secretary Cass in 1857 was abandoned in 1900, when President Mc- 
Kinley, without any express authorization from Congress, sent a 
naval force under Admiral Kempff and an army of about 5000 men under 
General Chaffee to China, not merely for the purpose of rescuing 
and protecting the lives and property of American citizens in China, 
but also to cooperate with the forces of the other Powers in aveng- 
ing and punishing the murder of the representatives of these Powers 
that had been killed during the Boxer uprising. Although the en- 
suing campaign involved hard fighting and many casualties, the Presi- 
dent said that our declared aims "involved no war against the Chineso 



35 Cass to Lord Napier, Apr. 10, 1857. Moore's Digest . VII. 164 

36 Richardson, op. cit .. V, 507. Buchanan was, however, 
curiously inconsistent, deeming it necessary to appeal to Congress 
for authority to protect American citizens in Nicaragua, New Grenada 
and Mexico, and to keep the Panama and Tehuantepec routes of transit 
open and safe for them. "The executive government of this country", 
he said, "in its intercourse with foreign nations is limited to the 
employment of diplomacy. When that fails it can proceed no further. 
It can not legitimately resort to force without the direct authority 
of Congress, except in resisting and repelling hostile attacks. . . 
Without the authority of Congress the Executive can not . . , with- 
out transcending his constitutional power, direct a gun to be fired 
into a port or land a seaman or marine to protect the lives of our 
countrymen on shore or to obtain redress for a recent outrage on 
their property. . . Without the authority of Congress the President 
can not fire a hostile gun in any case except to repel the attacks 
of an enemy." Richardson, op. cit .. V, 516, 539, 570. 



49. 



„37 



nation. We adhered to the legitimate office of rescuing the imperil 
ed legation, obtaining redress for wrongs already suffered, securing 
wherever possible the safety of American life and property in China, 
and preventing a spread of the disorders or their recurrence. 

A still more recent example o+ this exercise of the Presi- 
dent's power is the action of President Wilson in April, 1914, in 
ordering a force of sailors and marines to capture Vera Cruz by way 
of reparation for Huerta's affront to the flag of the United States. 
This measure, characterized by en eminent historian as "an act of 
war" which looked to Latin- American countries like "the beginning 

of a war of conquest" and which was "fiercely resented in Mexico", 

38 

was undertaken without authority from Congress, the city, more- 
over, being occupied for a period of seven months (until November 
£3, 1914) by an army of 6000 men under General Funston. 

The power of the President to employ the land and naval 
forces on his own authority, whether for the purpose of protecting 
the so-called "inchoate interests" and honor of the United States, 
or the rights and property of American citizens abroad, has thus 
been demonstrated in actual practice arein and again, and seems also 
to have been approved by Congress, by the courts, and by public 
opinion. It seems scarcely necessary to suggest the possibilities 
of international complications and conflicts that may result from 
an unwise exercise of this power, and hence the enormous responsi- 
bility for the peace of the United States that rests in this way 
upon the shoulders of the President. 



37 Message to Congress, Dec. 3, 1900. For. Rel. 1900 . xiv.For an 
account of the expedition, see Root , Military and Colonial Policy of 
the United States . 333. 336-347;cf. Taft. Our Chief Magistrate ana ki's 
Powers. 114-115. 



3*8 Vera Cruz was captured Apr. 21, 1914. The next day Congress 
passed a resolution declaring the use of troops justifiable and dis- 
claiming any purpose to make war. 36 Stat, at L .. 770. 

39 e Qgfr. National Progress. 293-295. 



50. 



But in addition to these powers of protection, which are, 
after all, inherent in government, a more recent development of 
American foreign policy has vested in the President considerable 
power with respect to intervention end police supervision over the 
affairs of other nations. The so-celled "zone of the Caribbean", 
because of its proximity and strategic importance to the United 
States, the unsettled character of the governments in that zone, and 
the inclination of the United States under the Monroe Doctrine to 
look with disfavor upon action by any foreign power, is now con- 
sidered as being under the general police supervision of the United 
States; the policy of this country having undergone a gradual change 
from one of sympathetic interest but absolute non-interference in tho 
affairs of t ese Caribbean states to one of direct and active inter- 
vention in their internal affairs. 4 ^ 

This power of intervention and police supervision was 
probably first exercised by President Cleveland in 1885, when during 
the course of a civil war in Colombia, he sent troops to keep open 
the transit across the Isthmus of Panama. Although this action was 
taken under authority of a provision (Article 55) in the treaty of 
1846 with Colombia, its execution, as the President informed Con- 
gress, "necessarily involved police control where the local authori- 
ty was temporarily powerless, but always in aid of the sovereignty 
of Colombia" 41 

The doctrine upon which the exercise of such police con- 



40 Jones, Caribbean Interests of the United States . 17-23. 
See also several articles by P. M. Brown -- "Our Caribbean Policy", 
Proc. Acad. Pol. Sci. t VII, 418-42E; "American Diplomacy in Central 
America". Am. Pol. Sci. Rev .. VI, supp., 152-163; "American Inter- 
vention in Central America", Am. Jour. Race Development . IV, 409- 
426. 

41 Message to Congress, Dec. 8, 1885. Riohardson, op. oit .. 
VIII, 326. 



51. 



trol might be justified was laid down by President Roosevelt in 
his message to Congress, December 6, 1904, when he said: "Chronic 
wrongdoing, or an impotence which results in a general loosening 
of the ties of civilized society, may in America, as elsewhere, ul- 
timately require intervention by some civilized nation, and in the 
Western Hemisphere the adherence of the United States to the Monroe 
Doctrine may force the United States, however reluctatntly, in 
flagrant cases of such wrongdoing or impotence, to the exercise of 
an international police power. 

The doctrine here laid down has since been developed into 
a definite policy largely through numerous military measures under- 
taken on the sole authority of the President. Thus, in 1905, even 

before he entered into the executive agreement with Santo Domingo 

43 

already referred to, President Roosevelt directed United States 

naval forces to interfere and prevent any fighting in that country 

44 

which might menace the custom-houses. United States marines have 
since been landed on several occasions both in Hayti and Santo Do- 
mingo to preserve order and to maintain the customs service; since 
1912 the latter country hss been favored with at least one visit a 



42 For. Rel. 1904 . xli. 

43 Supra . 36. 

44 "Santo Domingo had fallen into such chaos that once for 
some weeks there were two rival governments in it, and a revolution 
was being carried on against each. • . The situation had become in- 
tolerable by the time that I interfered. There was a naval com- 
mander in the waters whom I directed to prevent any fighting which 
might menace the custom-houses. He carried out his orders, both 

to his and my satisfaction, in thoroughgoing fashion. On one oc- 
casion, when an insurgent force threatened to attack a town in which 
Americans had interests, he notified the commanders on both sides 
that he would not permit any fighting in that town, but that he 
would appoint a certain place where they could meet and fight it 
out, and that the victors should have the town. They agreed to meet 
his wishes, the fight came off at the appointed place, and the vic- 
tors, who if I remember rightly were the insurgents, were given the 
town." Roosevelt, Autobiography . 549. 



52. 



year from United States cruisers; and in 1916 8 military occupation 
of the island was established that has apparently not yet been aban- 
doned (February, 1920 )t 6 

In February, 1907, during the course of a war between 
Nicaragua and Honduras, American warships actively intervened in 
order to protect life and property from needless destruction and to 
prevent the spreading- of the war, and the American charge (Philip 

Marshall Brown) even assumed temporary authority in Honduras when 

46 

the government fled. In 1909-191C, by the use of naval vessels 

end marines, the resignation and flight of an obnoxious president of 

Nicaragua (Zelaya) was forced and the success of a revolution as- 
47 

sured; while in 1912 end 1914, United States marines again activelj 

intervened in Nicaragua, but on these occasions on the side of the 

government to put down revolutions that might otherwise hare suc- 
48 

ceeded. In Honduras, the joint intervention of American and Brit is 
marines prevented fighting between the two factions in that country, 
and secured the election of a provisional president agreeable to botj 

49 

factions; while only recently an American naval force was again 
landed in that country to preserve order during a chenge of govern- 
ment? 

In all these numerous instances of intervention and police 
supervision in the Caribbean zone, the use of the marines has been 



46 Ogg. op.cit . . 261; Am. Jour. Int .Law . XI. 394-599 ; see also infra , 
note 53. 

46 For.Rel. 1907 . 11.627.628; P.M.Brown. op.cit .. in Am. Jour. Race 
D evelopment . 

47 For. Rel. 1909 . 452-459; ibid. 1910 . 738-767. 

48 Jones, op.cit . . 176-178; Ogg. or.cTF . . 261-262. President Taf 
mentions the intervention of 1912 as "the landing of marines and quih: 
a campaign, which resulted in the maintenance of law and order and 
the elimination o^ the insurrectos'.' He says this was "not an act of 
war, because it was done at the request and with the consent of the 
lawful authorities of the territory where it took place." Our Chief 
Magistrate and His Powers . 96 



49 P.M.Brown. op.cit . . in Am. Jour. Race Development . Am. Pol . Sci . Re V 
5Q N. Y. ^mnn, ftopt ■ 12, 1919 . 



< 



53 



so common es to warrant the suggestion of a new constitutional prin- 
ciple, that the landing of marines may be considered as a "mere local 

police measure" , while the use of regulars for the same purpose would 

51 

be an act of war. Intervention is, however, defined in a recent 
authoritative publication as "an interference by a nation in the 
affairs of a nother without the intention of waging war. It is com- 
monly defended es a police measure by the intervening power, but is 

often followed by war, and may always be regarded by the second power 

58 

as an act of war . Hence, even though the suggestion of a consti- 
tutional principle may be accepted in the United States as justify- 
ing the President in his frequent resort to such measures of police 
control in the zone of the Caribbean, as it apparently has been 
accepted, this exercise of the President's power may not be so 
readily accepted by the other countries concerned, but may, on the 

other hand, be resented by them and lead to serious difficulties and 

53 

entanglements, if not to actual war. 

Recent events have also shown the possibilities involved 
in an extension of these powers of intervention and polioe super- 
vision, even beyond the zone of the Caribbean. The landing of 
United States bluejackets at Trau in September, 1919, in order to 

prevent a conflict between the Italians and the Serbs, although 

54 

apparently done at the request of the Italian authorities, was en- 



51 See Taft, Our Chief Magistrate and His Powers . 95. 
58 War Cyclopedia ( lBt ed.), 138. 

53 Cf. Jones, op. cit .. 190. In the fall of 1919, a commissioli 
from Santo Domingo issued a plea for self-government and the aban- 
donment o^ the American military government; while at about the same 
time the Spanish government transmitted to Washington a letter from 
the heads ofall the Spanish parliamentary parties, suggesting that 
the time had come for e termination of the American military occu- 
pation of that island. N. Y. Times , Sept. 11 & 12, 1919. 

54 See statement of Admiral unapp, transmitted by Secretary 
Deniels to the ^enate, Oct. 2, 1919, in response to a Senate resolu- 
tion. Ibid ., Oct. 3, 1919. 



54. 



tirely without the previous knowledge or consent of Congress or the 
Senate. 

This use of American forces for police purposes in Hel- 
met ia, and the report that troops were also to he sent to supervise 

the plehiscites in Silesia and to preserve order in Armenia and 
55 

elsewhere, aroused a storm of criticism in Congress. The action 

in Dalmatia was denounced as against law and precedent, and Senator 

Sherman (Illinois) introduced a resolution declaring that the assign 

ment of foreign territory to be policed or guarded by United States 

forces was beyond the power of the Supreme War Council or the Execu- 

56 

tive, without the consent of the Senate. 

Such a conception of the President's power with regard 
to the use of the armed forces might have some weight, had the 
action under criticism been taken in time of peace. Under the cir- 
cumstances, howrver, of a continuing state of war, the correct view 
was undoubtedly stated by Senator Hitchcock (NebraskaJ when he said 
that the action taken with regard to the Dalmatian coast was within 
the war powers of the President and delegated by him to the Supreme 
far Council. The failure of the Senate to take any action on the 
Sherman resolution would seem to indicate its approval of this view. 
The incident serves at least to illustrate the possibilities in- 
volved in an extension of the sphere within which the President may 
undertake these military measures without the authority of Congress. 

55 li Y. Times Current Hist. Mag., XI, 225-226 (Nov., 1919). 
According to press reports a force of American troops was sent to 
Coblens with a view to their possible use ultimately to help police 
the plebiscite in Upper Silesia; but Secretary of War Baker announce 
that these troops would remain at Coblenz as a part of the garrison 
there, unless the Senate should ratify the treaty and thus make 
American participation in the plebiscite strictly legal. See N. Y. 
Time 8 . Nov. 21, 1919. 

56 N. Y. Times , Sept. 27 & 30, 1919. 

57 Ibid .. Sept. 30, 1919. 



55. 



Chapter IV. 
Power of Defense . 

A formal declaration is not necessary to constitute a 

state of war, and is a comparatively unimportant factor in dating 

the beginning of a war, because it does not necessarily precede 

hostilities, nor has it in fact often done so. Until recently, a 

formal declaration of war was not, as a matter of international law, 

necessary or usual. 1 Most wars during the eighteenth and nineteenth 

centuries were fought "under the rule of a word and a blow, with the 

g 

blow coming first and the word possibly left unsaid." A declara- 
tion of war, says Woolsey, is "a warning issued by a state to its 
own people, or to the neutral, that war has begun, and not a warn- 
ing to the enemy that war will begin at a certain future date. Mark- 
ing thus a status already existing, it cannot itself originate that 
status. The outbreak of war gives rise to the declaration, not the 
declaration to the outbreak. . . It is the fact of violence, then, 
and not the declaration of a status, upon which we must really fix 
our eyes, if we should ask when war begins." 

The question then arises, under what circumstances may a 
war be begun before a formal declaration is made, or even without a 
formal declaration, and with what branch of the government the power 
rests to begin such a war. 

Authorities agree that the power to begin an offensive 
war, or a war of aggression, rests in the United States only with 

1 S. E. Baldwin, in Am. Jour. Int. Law , XII, 1; Woolsey, 
International Law. Bee. 120: Moore's Digest of International Law . 

vii, in. 

2 For a list of wars begun without a declaration, see Am . 
Jour. Int. Law . II, 57-62. 

3 T. S. Woolsey, "The Beginnings of 'War", Proceedings. Am. PqI l 
fini» Annn ., T, 54 - 68 - I 



56. 



Congress, and should properly be preceded by a declaration made by 
that body. 4 The Constitution establishes the mode in which this 
government shall commence wars of its seeking-, but the Constitution 
hae no power to prescribe the manner in which otherB should begin 
war against us. There is in every nation an inherent power of self- 
defense, and it is to be presumed that, though the power to declare 
a war is by our Constitution clearly vested in Congress, in the ab- 
sence of such a declaration the Constitution does not leave the 
nation powerless for defense against attack. Hence it follows, as 
Whiting says, "thet when war is commenced against this country by 
aliens or citizens, no declaration of war by the government is 
necessary. 

Whiting also contends that the power to begin and wage a 
war of defense rests clearly with the President. "The fact that 
war is levied against the United States", he says, "makes it the 
duty of the President to crll out the army or navy to subdue the 
enemy, whether foreign or domestic. • • If the commander-in-chief 
could not call out his forces to repel an invasion unless the Legis- 
lative department had previously made a formal declaration of war, 
a foreign enemy, during a recess of Congress, might send out its 
armed cruisers to sweep our commerce from the sees, or it might 
cross our borders and march, unopposed, from Canada to the Gulf be- 
fore a majority of our Representatives could be convened to make 

4 Whiting, War Powers under the Constitution . 39; Burgess, 
Political Science and Comparative Constitutional Law . II, 261; Taft, 
Our Chief Magistrate and His Powers . 95; Prize Cases. 2 Black, 635, 
668, (1862). 

5 Whiting, op. cit .. 39; cf. amendment proposed by the Hart- 
ford Convention of 1814, providing for a two-thirds vote of both 
houses to declare war or authorize hostilities, "except such ects 
of hostility be in defense of the territories of the United States 
when actually invaded." The Federalist (Ford ed. ) , Appendix, 689. 



57. 



that declaration". He claims that the Constitution, which gives 
the Legislature authority to declare war whenever initiated by the 
United States, also imposes upon the President the duty, as com- 
mander-in-chief, "to engage promptly and effectually, in war, or, 
in other words, to make the United States a belligerent nation 
without a declaration of war or any other act of Congress, whenever 
he is legally called upon to suppress rebellion, repel invasion, 
or to execute the laws against armed public resistance thereto."** 
This view is supported by Birkhimer, 7 who admits that a formal de- 
claration of war can be made only by Congress, but says that it is 
necessary sometimes to prosecute hostilities without such a declara- 
tion, and that the President then must act, for the time being, at 
least, independently of Congress. "When the authorities of the 
Union are assailed, either by foreign foes, . . or by domestic 
ones, . . it is the duty of the President to repel force with force 
without waiting for any formal declaration." 

The power of the President to begin and carry on a defen- 
sive war without a declaration by Congress is also vigorously up- 
held by the Supreme Court of the United States. In handing down the 
decision of the court in the famous Prize Cases, Justice Grier, 
after admitting the full constitutional power of Congress to de- 
clare a national or foreign war, said: "The Constitution confers 
on the President the whole Executive power. He is bound to take card 
that the laws be faithfully executed. He is Commander-in-Chief of 
the Army and Havy of the United States, and of the militia of the 

6 Whiting, op. cit .. 39-40; cf. Birkhimer, Military Govern - 
ment and Martial Law (End ed.), 48. 

7 Military Government and Martial Law , 47; cf. also Chambrun, 
The Executive Power . 12"5T 

5 2 Black, 655 (1862). 

- ! 



58. 



several states when called into the actual service of the United 
States. He has no power to initiate or declare a war either against 
a foreign nation or a domestic State. But by the Acts of Congress 
of February 28th, 1795, and 3d of March, 1807, he is authorized to 
call out the militia and use the military and naval forces of the 
United States in case of invasion by foreign nations, and to sup- 
press insurrection against the government of a State or of the 
United States. If a war be made by invasion of a foreign nation, 
the President is not only authorized but bound to resist force by 
force. He does not initiate the war, but jls bound to accept the 
challenge without waiting for any special le^islat ive authority . 
And whether the hostile party be a foreign invader, or States or- 
ganized in rebellion, it is none the less a war, although the de- 

Q 

deration of it be 'unilateral* ." 

That defensive wars are clearly contemplated by the Con- 
stitution is shown by the provision which gives to Congress the 
power "to provide for calling forth the militia to execute the laws 
o- r the Union, suppress insurrections, and repel invasions. Under 
that provision. Congress has, by the acts referred to in the Supreme 
Court decision, and other acts, vested the President with authority 
to call out and use the militia in the cases contemplated, and in 
that sense wage a defensive war without further declaration by Con- 
gress. 

The Supreme Court need not have rested its case, however, 

9 Prize Cases . 8 Black. 635, 668 (1862). Cf. Talbot v. John - 
son, 3 Dall., 133, 160 (1795)*. "War can alone be entered into by 
naTional authority; it is instituted for national purposes, and 
directed to national objects. . . Even in the case of one enemy 
against another enemy, therefore, there is no color of justification 
for any hostile act, unless it be authorized be some act of the 
government giving the public constitutional sanction to it." 
10 Constitution, ^rt. I, Sec. 8, CI. 15. 



59. 



solely on those Acts of Congress, but might have gone beck to the 
language and intent of the Constitution itself. The action of the 
Convention of 1787 is significant in this connection. The Committee 
on Detail had reported a clause giving to Congress the power "to 
make war . During the discussion over this proposition, it was 
suggested that the wording of the clause gave Congress practically 
unlimited control over all the operations of war. Hence Madison 
and Gerry moved to strike out the word "make" and insert "declare", 
with the avowed purpose of "leaving to the Executive the power to 
repel sudden attacks ."^ suggested change in language was 

adopted with little opposition, and there would here seem to be some 
constitutional sanction for the power of the President to wage de- 
fensive wars without direct authorization from Congress. 

That power of the President is now at least a generally 
recognized and well established principle of American constitutional 
law, the validity of which was vigorously asserted in 1907 by our 
delegates at the Hague Convention. When the proposal was made for 
an article requiring that hostilities should not begin without a 
previous warning, in the form of a declaration of war or of an 
ultimatum accompanied by a conditional declaration of war, the 
American delegation expressed its entire sympathy with the purport 
of the article. It called attention, however, to the -fact that 
Congress under the Constitution had exclusive power to declare war, 
and that the delegation could enter into no agreement to modify that 
power in any way. The statement of the delegation then went on to 
say, however, that it has been the unbroken practice of the Govern- 
ment of the United States for more than a century to recognize in 

11 Madison's Journal (Hunt ed.), II, 82. 
IE Ibid ., leol 



60 



the President, es the Commander-in-Chief of the constitutional land 
and naval forces, full power to defend the territory of the United 
States from invasion, and to exercise at_ all times and in all places 



the right of national self-defense The delegation announced its 

willingness to support a proposition favoring a formal declaration 

of intent to engage in hostilities, providing it were nonmandatory 
13 

in character. 

The power of the President to wage a defensive war without 
a formal declaration and without specific authorization by Congress 
is thus, according to all authority, clearly granted, if not in so 
many words, at least by implication and the inherent purpose of the 
Constitution. The questions still remain as to what constitutes a 
defensive war, and to what extent the President may exercise these 
powers of defense. They are best answered by some references to 
history. 

President Washington had appointed General Wayne' to suc- 
ceed St. Clair in command of the western department , and in the sprinj 
of 1794 Wayne was ready to move against the Indians. Meanwhile, 
the British had established a fort at the rapids of the Miami, 
twenty miles within American territory, near which the Indians took 
their stand. The action of the British was, of course, entirely un- 
justified, and technically constituted an invasion of American 
territory; but it is not clear that any aggressive act of war was 
intended. Washington recognized that an attempt to dislodge them 
would probably bring on a conflict, which he was especially anxious 
to avoid. He seemed, however , to have no doubts as to his power in thti 
regard, for, after weighing carefully the expediency of such action. 



13 See article by George B. Davis, "The Amelioration of the 
Rules of War on Land", in Am. Jour. Int. Lew, II, 63-77. 



61 



and without consult ing Congress , the following instructions were 
issued to Wayne by General Knox, the Secretary of War: "If, there- 
fore, in the course of your operations ep-ainst the Indian enemy, 
it should become necessary to dislodge the party at the rapids of 

the Miami, you are hereby authorized, in the name of the President 

-14 

of the United States, to do it. Fortunately, Wayne was able to 
defeat the Indians without becoming officially involved with the 
British, end a conflict was for the time being averted. 

The question of the extent of the President's powers in 
the case of a war begun by another nation was more clearly raised 
in Jefferson's administration, with regard to Tripoli. Tripoli 
had declared war on the United States because of the letter's failuro 
to comply with demands which Jefferson said were "unfounded either 
in right or in compact". Jefferson apparently had no doubt of his 
power to take certain defensive measures without special authority 
from Congress, ^or he immediately despatched a small squadron of 
frigates into the Mediterranean, with orders to protect our com- 
merce against attack. A conflict ensued, as a result of which one 
of the Tripolitan cruisers was captured together with what remained 
of her crew. But further than to fight in the strictest defense, 
Jefferson felt that he had no constitutional authority, and so, as 
he explained in his message to Congress, "Unauthorized by the Con- 
stitution, without the sanction of Congress, to go beyond the line 
of defense, the vessel, being disabled from committing further hos- 
tilities, was liberated with its crew. The Legislature will doubt- 
less consider whether, by authorizing measures of offense also, 
they will place our force on an equal footing with that of its ad- 

14 Pish, American diplomacy , 83-84. 



62. 



versaries. I communicate all material information on this subject, 
that in the exercise of this important function confided by the Con- 
stitution to the Legislature exclusively their judgment m8y form 
itself on a knowledge and consideration of every circumstance of 
weight". 16 

It is not strange that such a timid attitude should have 
aroused the wrath of Hamilton, who attacked the President's inter- 
pretation of his war powers in his usual vigorous style. He called 
it a "very extraordinary position" that, though Tripoli had made a 
formal declaration of war against the United States and had perform- 
ed acts o- p actual hostility, yet there was no power, for want of the 
sanction of Congress, to capture and detain her crews. That positioi 
meant nothing less, he said, than "that between two nations there 
may exist a state of complete war on the one side — of peace on the 
other." Such a position was to him ridiculous. "It is impossible", 
he maintained, "to conceive the idea, that one nation can be in full 
war with another, and this other not in the same state with respect 
to its adversary. The moment that two nations are, in an absolute 
sense, at war, the public force of each may exercise every act of 
hostility, which the general laws of war authorize, against the 
persons and property of the other. As respects this conclusion, 
the distinction is only material to discriminate the aggressing 
nation from that which defends itself against attack. The war is 
offensive on the part of the state which makes it; on the opposite 
side it is defensive; but the rights of both, as to the measures of 
hostility, are equal." Hamilton then went on to explain the con- 
stitutional phrase granting to Congress the power to declare war, 



15 Richardson, Messages and Papers of the Presidents . I, 3£7. 



v. 



63. 



"the plain meaning of which", he said, "is thet it is the peouliar 
and exclusive province of Congress, when the nation is at peace, to 
change that state into a state of war, whether from calculations 
of policy, or from provocations, or injuries received: in other 
words, it_ belongs t o Congress onl y , to £c £0 War . But when a f oreigr, 
nation declares, or openly and avowedly makes war upon the United 
States, they are then by that very fact already at war , and any de- 
clarat ion on the part of Congress is nugatory ; it is at least un- 
necessary. This inference is clear in principle, because it is self- 
evident, that a declaration by one nation against another, produces 
at once a complete state of war between both, and that no declaration 
on the other side can at all vary their relative situation; and in 
practice, it is well known, that nothing is more common than when 
war is declared by one party , to prosecute mutual hostilities with - 
out a declaration by the other . * 

Congress felt somewhat as did Hamilton, that a declaration 
of war would be a useless formality against a horde of pirates, as 
the Barbary Powers were considered; but to remove the President's 
scruples, an act W8S passed empowering him to proceed with hostili- 
ties.! 7 

Jefferson himself was evidently not convinced by the 
argument of Hamilton, for in 1805, in a confident ial message to Con- 
gress with regard to the Spanish depredations on United States ter- 
ritory, he again asserted the doctrine that only by authority of 
Congress could any hostile act be performed, beyond the strictest 
necessities of self-defense. Although the Spaniards had authorized 

16 Works of Alexander Hamilton . VII, 201-204. 

17 McMaster, History of the People of the United States . Ill, 
E01; Act of Mar. 26 r 1604. Annols of Cong .. 8 Cong., 1 Sess., App. , 
1301. 

: =1 



64. 



the inference that it was their intention to advance on our pos- 
sessions, Jefferson wrote: "Considering thet Congress alone is 
constitutionally invested with the power of changing our condition 
from peace to war,. I have thought it my duty to await their authority 
for using force in any degree which could he avoided. I have barely 
instructed the officers stationed in the neighborhood of the ag- 
gressions, to protect within the borders actually delivered to us. 
and not to go out of them but when necessary to repel an inroad, or 

"ID 

to rescue a citizen, or his property". Congress took no action 

beyond referring the message to a committee, and hence the inactive 

19 

and undecided attitude of the government continued. 

In 1818 the question as to the extent of the power of de- 
fense came before the administration in a different and more extreme 
form. President Monroe strongly asserted his right to take defen- 
sive measures against the Indians in the South, even to the extent 
of pursuing them across the border into Florida, at that time a 
Spanish possession. "The inability of Spain", he said, "to maintain 
her authority to fulfill the treaty (of 1795), 20 ought not to ex- 
pose the United States to other and greater injuries. When the 
authority of Spain ceases to exist there, the United States have a 
right to pursue their enemy on a principle of self-defence . . . To 
the high obligations and privileges of this great and sacred prin- 
ciple of self-defence will the movement of our troops be strictly 
confined." Acting on these principles, the President had given 
General Jackson orders which clearly authorized him to enter Florida, 

18 Am. State Papers , For. Hel ., II, 613; Annals of Cong ., 
9 Cong., 1 Sess. , 18-19. 

19 Annals of Cong . . 9 Cong., 1 Sess., 947. 

20 Spain had bound herself in this treaty to restrain the 
Indians from committing hostilities sgainst the United States. 



65. 



[but only in the pursuit of the Indians, and had carefully instructed 
lim in that case "to respect Spanish authority wherever it is main- 
tained", 8nd "to withdraw his forces from the province as soon as 
le shall have reduced that tribe to order. • ," 2 1 

General Jackson accordingly carried the campaign against 
the Indians into Florida, hut in so doing came into conflict with the 
Spanish authorities, and even stormed a Spanish fort and occupied 
Pensacola. When the subject of his transaction came before the Cabi- 
net for deliberation, John Quincy Adams argued strenuously in support 
of the proposition that Jackson's acts were justified as purely de- 
fensive measures. "My opinion is", he said, "that there was no real, 
though an apparent, violation o^ his instructions; that his proceed- 
ings were justified by the necessity of the casT, and by the mis- 
conduct of the Spanish commanding officer in Florida. The question 
iB embarrassing and complicated, not only as involving that of 
actual war with Spain, but that of the Executive power to authorize 
hostilities without a declaration of war by Congress. There is no 
doubt that defensive acts of host ility may be authorized by the 
Execut ive ; but Jackson was authorized to cross the Spanish line in 
pursuit of the Indian enemy . My argument is that the quest inn of 
the constitutional authority of the Executive is precisely there; 
that all the rest, even to the order for taking the Fort of Barran- 
cas by storm, was incidental, deriving its character from its ob - 
ject , which was not hostility to Spain, but the termination of the 
Indian war". Jackson's justification was the eminently practical 
one that an imaginary boundary line could not afford protection to 
our frontiers from the Indians in Florida, that the Spanish authori- 

21 Message to Congress, Mar. 25, 1618. Am. State Papers . Mil. 
Affairs . I, 681; cf. Jackson's defense of himself, Ibid .. 755-757. 

■ I 



66. 



ties had interfered with the success of his campaign, and that all 
his operations were founded on those considerations. This argument 
appealed to Adams, who said that "everything he did was defensive ; 
that as such it was neither war against Spain nor a violation of the 
Const itution. 1,22 

This seemed to he a rather extreme view of what consti- 
tutes a "defensive measure", and Adams was unable to convince the 
President and the other members of the Cabinet, all of whom were of 
the opinion that Jackson had acted not only without, but against 
his instructions; and that he had committed war upon Spain, which 
could not be justified and must be disavowed by the administration. 
The President supposed, however, that there might be circumstances 
which would have justified such measures as Jackson had taken, but 
thst he had not made out his case. 

President Wilson's despatch of a punitive expedition into 
Mexico after the Columb-s raid in March, 1916, involved the exercise 
of powers of defense similar to those claimed by Monroe in 1816. 
The expedition was thought to be necessary in order to protect the 
United States against bandit raids which events had apparently shown 
the Mexican government too weak to suppress. In a statement to the 
press, President Y/ilson announced that the expedition would have the 
"single object" of capturing Villa and putting a stop to his forays. 
"This", he said, "can and will be done in entirely friendly aid of 

22 Memoirs of John Quincy Adams , IV, 108, 111. About a year 
later, Adams advised the President tnrt the occupation of Florida, 

a measure then proposed, would be "in itself an act of war. It may 
very probably involve us in a real snd very formidable war". He 
very frankly admits, however, that this opinion did not reflect his 
real views, but was given in order to secure just that result, since 
he had discovered that his advice usually resulted in the opposite 
action being taken. Memoirs, IV, 450. 

23 Ibid., 108. 



67. 



the constituted authorities in Mexico and with scrupulous respect 
for the sovereignty of Mexico." 24 Though the expedition later in- 
volved threatening complications with the Mexican authorities, and 

even some encounters with Mexican troops that resulted in blood- 
25 

shed, it is justified by eminent authority on the ground that "the 

President was in this instance but performing his constitutional 

86 

function of repelling invasion." 

The President has also in another way shown himself able 
to exercise important powers of defense without express authoriza- 
tion from Congress. When the difficulty with France reached a crisis 
in 1798, President Adams announced to Congress that ho had revoked 
his former instructions to collectors not to permit the sailing of 
armed merchant vessels, and thereby indirectly authorized the arming 

27 

of such vessels as a measure of defense. This exercise of Execu- 
tive power was opposed by Jefferson, who looked upon it as a measure 
leading to war and proposed that there should be "a Legislative pro- 
hibition to arm vessels instead of the Executive one which the 
President informs them he has withdrawn." 2 ® 

That suggestion was favored also by Madison, who denounced 
the action of the President as a usurpation of power. "The first 
instructions", he said, "were no otherwise legal than as they were 
in pursuance of the Law of nations, & consequently in execution of 
the law of the land. The revocation of the instructions is a virtua! 
change of the law, & consequently a usurpation by the Ex. of a 
legislative power. It will not avail to say that the law of Nations 

24 See Am. Jour. Int. L8w. X. Supp. , 180, 184. 

25 For a brief account, see Ogg, National Progress . 297-299. 

26 Corwin, The President's Control of Forelpn Itelat ions . 163. n. 

27 Message of Mar. 19, 1798. Richardson, op. cit .. I.*""265. 

28 Je-P-^erson to Monroe, Mar. 21, 1798. Writings of Thomas 
Jefferson . VII, 221. 



68 



leaves this point undecided, & that every nation is free to decide 
for itself. If this be the case, the regulation being a Legislative 
not an Executive one, belongs to the former, not the latter Autho- 
rity; and comes expressly within the power, 'to define the law of 

£9 

Nations', given to Congress by the Constitution." 

While the right of the President to authorize the arming 
of merchant vessels for defense was thus disputed, the seriousness 
of such action was not questioned even by his supporters, but* on the 
other hand, it was frankly admitted to be a step leading to war.^O 

More recently the President's right to exercise this power 
of arming merchant vessels for defense again became a sharp issue. 
Germany having announced the renewal of her ruthless submarine war- 
fare, President Wilson went before Congress February 26, 1917, and 
asked for authority "to arm our merchant vessels with defensive arms 
should that become necessary, and with the means of using them, and 
to employ any other instrumentalities or methods that may be neces- 
sary and adequate to protect our ships and our people in their 
legitimate and peaceful pursuits on the seas." While thus request- 
ing express authority, the President at the same time announced 
that he considered himself as already possessing that authority 
"without special warrant of law, by the plain implication of ray con- 
stitutional duties end powers." He said, however, that he preferred 
under the circumstances not to act upon such general implication, 
but wished to feel "that the authority and power of the Congress 

31 

are behind me in whatever it may become necessary for me to do." 

29 Madison to Jefferson, Apr. 2, 1798. Writings of James 
Had is on , VI, 313. Cf. Const itution . Art. I. Sec. 6, CI. 10. nn 

3U v.'illism Vans Murray, minister at The Hague, wrote as follow I 
to John Quincy Adams, June 1, 1798: "I have seen the circular, it 
permits arming in defence. It was all that the President could au- 
thorize, but it is war". Rerort. Am. Hist. Assn. 1912. 416. 

31* IT. Y. Times Current Hist. Lag ., VI, 48. 



69. 



The bill granting the authority asked for was favored by 
an overwhelming majority in "both houses of Congress, hut was de- 
feated by a filibuster in the Senate, the measure being opposed 
principally on the ground that it was a step leading to war, and 
therefore a delegation o* the war-making power of Congress to the 
President. The view of this "little group of wilfull men" — as 
they were characterized by President Wilson in a public statement — 
was perhaps best expressed by Senator Stone (Missouri ) , when he 
said: "This bill, if enacted, would confer power upon the President 
to initiate war, if he should so desire or determine, and to do 
that supremely solemn thing without first submitting the choice of 
war or peace to the Congress." Regarding the President's claim to 
that power without express authorization, he said: "I csn not con- 
sent that this clause (i. e., the clause of the Constitution giving 
the President power to execute the laws) confers, or v/os ever in- 
tended to confer, power upon the President to determine en issue 
between this Hat ion and some other sovereignty -- an issue involving 
questions of international lew -- end to authorize him to settle 
that law for himself, and then proceed to employ the Arm}" and Navy 
to enforce his decision". ^ 

In spite of the failure of Congress to grant his request 
for express authority, President Viilson, still convinced of his own 
power, and ^ortified not only by the known sentiments of the majority 
in Congress but also by, the advice of his Secretary of State and 



32 Conp. Record. LIV, Pt. 5, (64 Cong., 2. Sess.), 4878, 4884. 



70. 



Attorney General, 53 gave formal notice on March 12 o^ his determina- 
tion w to pl8ce upon ell American merchant vessels sailing through 
the barred areas en armed guard for the protection of the vessels 
and the lives of the persons on board". Accordingly, a lerge number 
of merchant vessels were equipped with sir-inch guns and gunners frori 
the United States Uavy were assigned to man them, supposedly with 
instructions not to await an attack by a submarine, but to fire at 

34 

Bight, the presence of a submarine presupposing its hostile intent. 

The expedient of armed neutrality so adopted by the Execu- 
tive as a measure of defense merely, was later acknowledged by 
President Wilson himself in his war address of April 2, to be not 
only "impract icrble" and "ineffectual enough at best", but under 
the circumstances even "worse than ineffectual" and " practically 



33 IT. Y. Times Current Hist. Mag ., VI, 55-56. An Act of Mar. 
3, 1619, provided that 8ny merchant vessel of United States registry 
might, by armed force, oppose or defend against "any aggression, 
search, restraint, depredation, or seizure", attempted by any other 
merchant vessel or "any armed vessel v;hatsoever, not be ing a publ ic 
armed vessel of some nat ion in amity with the Un it e d Stat esT " This 
act, still in force, wai held by some to forbid the action contem- 
plated by the President, since Germany was still officially a 
nation "in amity with the United States". Secretary Lansing and 
Attorney General Gregory advised the President, however, that the 
statute had been enacted with reference to protection against the 
pirates o* that time ana could not be held to apply to the present 
circumstances. See the act in Annals o^ Cong .. 15 Cong., 2 Sess., 
II, App., 2523. 

34 IT. Y. Times Current Hist, Mag .. VI, 56. ".Because submarine 
are in effect outlaws when used as the German submarines have been 
used against merchant shipping, it is impossible to defend ships 
against their attacks as the law of nations has assumed that mer- 
chantmen would defend themselves against privateers or cruisers, 
visible craft giving chase upon the open sea. It is common prudence 
in such circumstances, grim necessity, indeed, to endeavor to des- 
troy them before they have sh own the ir own intention . They must be 
dealt with u^on sight . if f.ealt with at ellT" Address to Congress, 
Apr. 2, 1917. LicKinley, Collected Materials for the Study of the 
War (1st ed. ) , 13. 



71. 



certain to draw us Into the wsr without either the rights or the 
effectiveness o^ belligerents." 35 

In 1846, the question o^ the President's powers of defense 
was raised in an even more complicated end contentious form. The 
events leading up to the Mexican t'ver involved the question of the 
President's power to recognize e state of war as already existing, 
and thereby begin defensive measures without authorization from Con- 
gress. They also illustrate to what extent hostile sets may be 
performed by a vigorous President in bringing about such a state of 
war, and how far operations may be conducted in the name of "de- 
fense". 

General Taylor hr.d been sent, after the annexation of 
Texas, to occupy the disputed territory beyond -Jthe Nueces River, 
with instructions, however, so the President said -- "to abstain 
from all aggressive acts toward Mexico or Mexican citizens, and to 
regard the relations between that Republic and the United States as 
peaceful unless she should declare war or commit acts of hostility 
indicative of a state of war." President Polk, however, had also, 
in the fall o^ 1645, instructed Taylor that the crossing o^ the Del 
Norte by the Llexican arnty was to te regarded es an act o^ war , and 
in that event he should net wait to be attacked, but should attack 
f irst . Moreover, he was not only to drive the invaders beck across 
the river, but he was vested with discretionary authority to pursue 
the Mexican army into Mexican territory, and to take Matamoras or 
any other post on that side of the river, with only the caution "not 
to penetrate any greet distance into the interior of Mexican Terri- 
tory." likewise Commodore Conner, commanding the American squadron 

35 KcKinley, op. cit ., 14. 

36 Richardson, op cit . , IV, 441. 



7* 



in the Gulf of Mexico, was instructed in a similar event to blockade 
all the L'exican ports on the Gulf, and to attack end take them if 
practicable, excepting only Yucetan and Tobasco, which had been 
reported as against the threatened war with the United States. 

The President evidently held none of Jefferson's timid 
views with regard to the Executive's powers of defense. Folk ex- 
pected war, he was indeed fully determined on war, but meant that 
the war should be "defensive" on the part of the United States. He 
had no intention, however, of limiting such a war of defense to 
merely repelling invaders. Polk did make inquiry of one of his 
friends in Congress (Senator Bsgby of Alabama) as to the necessity 
or propriety of calling Congress, in the event of a declaration of 
war or en invasion of Texas by Mexico, and was plainly relieved 
when the Senator cave it as his "clear opinion" that Congress should 
not be called. 38 

Having thus manipulated the situation so that actual hos- 
tilities were finally precipitated on the morning of April 25, 
President Polk thus summed up the situation in his message of May 
11, 1846: "After reiterated menaces, Mexico has passed the boundary 
of the United States, has invaded our territory, and shed American 
blood upon the American soil. She has proclaimed that hostilities 
have commenced, end that the two nations are now at war. As war 
exists , and, notwithstanding all our efforts to avoid it, exists by 
the act of Mexico herself , we are called upon by every consideration 
of duty and patriotism to vindicate with decision the honor, the 
rights, and the interests o^ our country. . . In further vindication 
of our rights and defense of our territory, I invoke the prompt 



37 Diary of James K. Polk, I, 9, 12. 

38 Ibid' .. I,T3T 



73 



action of Congress to recognize the eristence of war, end to piece 
at the disposition o^ the Executive the means of prosecuting the war 
with vigor, and thus hastening the restoration of peace." 

Even "before the President asked Congress thus to "recognize 
the existence of war", his instructions o^ the year before had been 
carried out, two battles hftd been fought, 40 and the war was already 
beine- carried on without any declaration or authorization by 
Congress. Tn Congress, in fact, the President's statement that "war 
exists by act of Mexico", and his consequent assumption that the 
war would be a "defensive" one, were not accepted without dispute. 
Senator Benton, for example, was willing to vote men end mone^ for 
defense of American territory, but was not prepared to make aggres- 
sive W8r on Mexico. He left it to be inferred that he did not think 

the territory of the United States extended west of the ITueces River, 

41 

and therefore he had not approved Taylor's occupation of that region. 

Mr. Morehead (of Kentucky) denied that war could exist 
without some prior action on the part of Congress. "If war does now 
exist", he said, "- if the people of the United States now -*ind 
themselves in a state of war with Mexico, it is a war which has 
not been brought about or declared by the legislative department of 
the United States, to which const it ut i one lly the power of declaring 
war belongs. The President of the United Stat s has no constitution- 
al power to involve the nation in war. But if war does exist 8t 
this time between the United States and Mexico, it may follow that 

39 Richardson, op. cit .. IV, 442, 443. 

40 Palo Alto and Resac8 de la Palma, on May 8 and 9, respec- 
tively. 

41 Pier;/ of James K. Polk . I, 390. Benton also suggested that 
a peaceable adjustment micrht be hao , referring to the proclamation o:! 
the President ad interim of Mexico denying his own right to declare 
war but leaving it to the consideration of the Mexican Congress. See 
Benton's Abridgment of the Debates of Congress, XV, 499. 



74 



the President of the United Stetes may involve the country in war 
without the assent of the legislative department of the Government? 4 * 
Mr. Archer (of Virginia) likewise declared that the intervention of 
Congress was absolutely indispensable to constitute war, that the 
existence of hostilities on one of the frontiers of the United States 
did not necessarily put us in a state of war with a foreign power; 
that the President's statement could not alone be accepted as in- 
dicating a sta*e of war, since an investigation might show the sta'.e 
of things on the Rio Grande to be misunderstood and the Mexican 
authorities to have acted justifiably; that if the President's state- 
ment were to be accepted as a legal and constitutional acceptation 

of a state o-* war, then the officers and men on the Rio Grande might 

43 

involve the country in war at their pleasure. 

The most vigorous assailant of the President's declaration 
was Calhoun, who insisted that "in the sense of the Constitution 
war could be declared only by Congress", that only through its 
authority could the state of things called "war" be announced to the 
country end the world. "War must be made", he said, "by the sover- 
eign authority, which in this case, were the Mexican Congress, on 
the one side, and the American Congress, on the other. The President 
of Mexico could not make war. It could be done only by the two 
countries. Even if the two Presidents had declared war, the nations 
could disavow the act." He declared it was "monstrous" that he 
should be asked to affirm "that a local rencontre, not authorized 
by the act of either Government, constituted a state of war between 
the Government of Mexico and the Government of the United States — 
to say that, by a certain military movement o* General Taylor and 



42 Benton's Debates . XV, 469, 492. 

43 Ibid . . 469, 490. 



75. 



General Arista, every citizen of the United States was made the 
enemy of every mon in Mexico. . . It stripped Congress of the power 
of making war; and, what was more end worse, it pave that power to 
every officer, nay, to ever^ subaltern commanding a corporal's 
guard." 44 

The President was, of course, not lacking in supporters, 
among them General Cass, who took direct issue with Calhoun. "There 
can be no hostilities undertaken by a government", he said, "which 
do not constitute a state of war. War is a fact, crested by an ef- 
fort made by one nation to injure another. One party may make a 
war, though it requires two parties to make a peace." Y/hile admit- 
ting that Congress alone has the right to declare war, end that "no 
authority but Congress can commence an aggressive war", yet he as- 
serted that another country "can commence a war against us without 
the cooperation of Congress", that it can, "at its pleasure, termi- 
nate the relations of peace with us, fend substitute for these the 
relet ions of war, with their legitimate consequences. War may be 
commenced with or without a previous declaration. It may be com- 
menced by a manifesto announcing the fact to the world, or by hos- 
tile attacks by land or sea." Whether or not the disputed terri- 
tory rightfully belonged to the United States or to Mexico made no 
difference, in the opinion of Cass. The ultimate claim to the 
country was a matter for diplomatic adjustment, but the United States 
was meanwhile in possession, and any attempt to dislodge her forces 

was an act o^ aggression and an act of war. Hence he argued thst 

45 

the war became for the United States one of defense. 

Under the stress o^ the patriotic feelings aroused by the 



44 Benton's Debates , XV, 491, 497, 500. 

45 Ibid . . 503, 504. 



76. 



shedding American blood, and under the plea that the war was 

strictly one of defense, Congress sut-tained the President, recognizee 

a state of war as already existing by act o 4 " Mexico, end authorized 

46 

the carrying on of hostilities. Its real feelings were, however, 

perhaps better expressed when the House of Her resentat ives , about 

two yeers later, passed a resolution "that the war was unnecessarily 

4' 1 

end unconstitutionally begun by the President of the United States". 

Lincoln's proclamation of blockade o^ the Southern ports 
in April, 1861, e?ain raised the question of the President's power 
to recognize the existence of a state of war without a declaration 
by Congress. The situation was all the more peculiar, in that this 
was- not a foreign war, but an insurrection, and therefore a blockade 
of the Southern ports was really a blockade of the nation's orn 
ports, something unknown to international law. Nevertheless, the 
Supreme Court, in the decision of the Prize Cases already referred 
to, sustained the validity of the president's action, and asserted 
his right to recgnize a state 0* war as already existing, and to 
take measures of defense in advance of Congressional authority. "A 
civil war is never solemnly declared," S8id the Court, "it becomes 
avch by its accidents the number, power, and organization of the 
persons ho originate and carry it on. . . As a civil war is never 
publicly proclaimed e_o nomine against insurgents, its actual exis- 
tence is a f« ct in our domestic history which the Court is bound to 
notice and to know. The true test of its existence . . . may be 
thus summarily stated: When the regular course of justice is inter- 

46 Act of May 15, 1846. 9 Stat . at L . , 9. 

47 See amendment of Mr. Ashmun to resolution 0^ thanks to 
Gen. Taylor, adopted Jan. 3, 1848. On i'eb. 14, 1648, the House 
tabled r motion to expunge this amendment from the Journal. Cong . 
Globe . 30 Con^., 1 Sess., 95, 345*544. 

======= 



77. 



rupted by revolt, rebellion, or insurrection, so thet the Courts of 
Justice cennot be kept open, c ivil we r exists and hostilities may be 
prosecuted on the seme footing as i 4 " those opposing the Government 
were foreign enemies invading the lend." The Court held that the 
question of ^act as to when an insurrection has reached such alarm- 
ing proportions as to be celled a war and the insurgents to be ac- 
corded the character o^ belligerents, is a question to_ b_e decided b^ 
the President in his capacity ss Commander-in-Chief. The Court 
would be governed by the decisions and sets of the political de- 
partment to which the power was entrusted. "The proclamat ion of 
blockade," said the Court, "is itself official and conclusive 
evidence to the Court that a state o-" war existed which demanded 

and authorized a recourse to such a measure under the circumstances 

48 

peculiar to the case". The Court thus in effect held that, while 
the existence of a state of war was necessary to the validity of a 
blockade, the ■''act that e blockade had been proclaimed was proof 
thet a state of war existed; and the President having authority to 
proclaim the blockade, v.as thereby empowered to declare the existenc 
of a war, and bind the Court and the country to his declaration. 

Pour Justices, including Chief-Justice Taney, dissented 
vigorously from this opinion. They argued that, although Congress 
had conferred upon the President euthority to meet sudden emergen- 
cies — to repel invasions and suppress insurrections — that autho- 
rity did not invest him with the war power. If so, they maintained, 
then we are in a state of war every time a military force is called 
out, "for the nature o^ the power cennot depend upon the numbers 
called out." "The Acts of 1795 and 1807", they said, "did not, and 



48 Prize Ceses . 2 Block, 635, 666, 667, 670, (1862). 



78 



could not under the Constitution, confer on the President the power 

of declaring? war against a State of this Union, ojr of deciding that 

war existed . . . This greet power is reserved to the legislative 

department by the express words of the Constitution, end cannot be 

delegated or surrendered to the Executive". The minority held, 

therefore, that if the insurrection were to he placed on the footing 

of a war, within the meaning of the Constitution, and he accorded 

belligerent rights under international law, it must be recognized 

or declared as a war by the war making power of the Government, that 

is, by Congress. "There is no difference in this respect", said the 

49 

Justices, "between a civil 8nd a public war." 

Such an eminent authority as Professor Willoughby is in- 
clined to agree with the minority rather than with the majority of 
the Court. He says that while all nations have the power and right, 
in case of a civil contest in another State, to determine whether 
the struggle is to be treated as a war and the contestants as bel- 
ligerents, yet the State concerned is not bound by such action and 
m^y continue to treat the insurgents as rebels. Therefore, he says, 
"it would seem tha+ , in the United States, from the constitutional 
viewpoint, it should lie with the wsr-declfiring power, that is, with 
Congress, to determine when the civil struggle should be recognized 
ae a war." 50 

Whether or not we agree with Professor Willoughby and the 
minority of the Court as presenting the most logical argument from 
a strictly constitutional standpoint, the decision of the majority 
stands as law in the United States, as it also represents the more 
practical point of view. The Constitution, made as it was by precti 

49 Prize Cases . 2 Black, 688-689, 690-693. 

50 Willoughby. On the Constitution . II, 797. 



79. 



M 52 



cal men who had just emerged from e long, herd struggle of defense, 
must be construed as giving the power to take measures for defense 
as quickly as those measures may he needed. Vihile the decision of 
the Court in this case upheld particularly the President's power to 
recognize an insurrection as 8 "state of wer" ana undertake the 
necessary defensive measures in that case without authority from 
Congress, the principle has also been held to apply to foreign wars 
as well. "In f^ct", says one authority, "according to the terms of 
the judicial decision just cited, a President who conducts affairs 
with a foreign power, so as skillfully to lead it to attack the 
United States, can always engage the ection of the country and 
inaugurate defensive wer. In a word, his remaining on the defensive 
is all that is required to authorize him to act."* 51 

It has been noted hov.' the power of defense has been as- 
sumed and asserted by the Executive, in varying degree, as a necessary 
and inherent function of his office. The law and practice are thus 
in accord as to the nature and location of the power. With regard 
to the "stent to which the President may constitutionally exercise 
this power o r defense. Professor Corwin draws an analogy between 
this Presidential power and the right of a state under international 
law to self-preservation, and concludes that while the power is 
theoretically reserved for "grave and sudden emergencies", in prac- 
tice it is limited only by the "powers of Congress and public 
opinion" . 



51 Chambrun, The Executive Pov-er . 121-122. Cf. ilcClain, Con - 
stitutional law in the United States. 190; Schouler, onst itut ional 



Stud ies. 129; Ogp* & Beard, Nrjtional Governments and the World v;er , 
102; Sens' p document !To. 56. 54 Conr-., 2 Sess., 5. 



52 The President's Control of Foreign i-eleMons, 156. 



80. 



Chapter V. 

Powers with regard to a Declaration of War . 

The Constitution gives to Congress the power "to declare 
war, grant letters of marque and reprisal, and make rules concern- 
ing captures on land and water". ■ Those functions were not granted 
to Congress as a matter of course, but only after much serious 
thought and discussion. The Congress under the Confederation had 
the "sole and exclusive right and power of determining on peace 
end war"; but the decision in the Convention of 1787 to create 
separate and distinct departments of government in pursuance of 
Montesquieu's theory o^ the separation of powers, opened up anew 
the whole matter of the proper functioning of each department, in- 
cluding the question of the proper depository for the war-making 
functions. 

Hamilton had suggested, in his plan presented quite early 

in the course of the Convention, that the power of declaring war 

should be vested exclusively in the Senate,^" but the report of the 

Committee of Detail gave to the legislature as a whole the power 
5 

"to make war". When this clause came up for consideration on 
August 17, it because a subject for warm debate. Mr. Pinkney op- 
posed vesting the power in the Legislature, whose proceedings he 
said were too slow; the House of Representatives he thought too 
numerous a body for such deliberations; and hence he agreed with 

1 Art. I, Sec. 8, CI. 11. 

2 Articles of Confederation . Art. IX, in Mcdonald's Documen- 
tary Source-Book of American History , 199. 

3 June 18. 

4 Madison's Journal (Hunted. ), I, 163. 

5 Ipld.. II, en — 



81. 



Hamilton that the Senate was the best depository. 6 Mr. Butler thought 
the objections against the Legislature would operate in great degree 
also against the Senate, and favored vesting the power in the Presi- 
dent, "who will have all the requisite qualities and will not make 
war but when the nation will support it". Mr. Sherman, on the other 
hand, thought the Executive should not be able to commence war; and 
Mr. Gerry "never expected to hear in a republic a motion to empower 
the Executive alone to declare war". Mr. Mason likewise thought the 
Executive was not safely to be trusted with the war power, nor was 
the Senate in his opinion so constructed as to be entitled to it. 
He was for clogging rather than facilitating war; but for facili- 
tating peace". As a final conclusion, the word "declare" was sub- 
stituted for the word "make", and the power "to declare war" was en- 

7 

trusted to the Legislative body. 

It seemed evident to the makers of the Constitution that 
a power involving such tremendous consequences must in a represen- 
tative government rest with the body most directly representative of 
the people. To vest the power of declaring war in the Executive 
savored too much of monarchy and of old-world institutions. Few 
have disputed the wisdom of that theory, few would do so today. 
Nevertheless, such an intense American as John Quincy Adams, spoke if 
1817 of the provision which confers upon the legislative the power 
of declaring war as "that error inthe Constitution" and a piece of 
"clumsy political machinery." He thought that, in the theory of 
government according to Montesquieu and Rousseau, the power of de- 



6 Pinkney had earlier in the Convention (June l) expressed 
his fear of extending the "powers of peace and war" to the Execu- 
tive, which he said would render the Executive a "monarchy of the 
worst kind, to wit, an elective one." Madison's Journal ( Hunt ed . ) , 
II 49. 

1 7 For the debate on this entire proposition, see ibid. ,11, 187f> 
jftQj^ ffn-rrand'a Hacorda of_the_Federal Convention. II. 318-520. 



8ft. 



daring war is "strictly an Executive act". 

It is believed that a brief examination will show, that 
though the power to begin war through a formal declaration is clear- 
ly and definitely granted to Congress, the President is by no means 
excluded from all share in such declaration. A declaration of war 
is a simple legislative act, going through the same procedure as any 

other legislative measure, and requiring no extraordinary majority 

9 

for its passage. The President has therefore all the rights and 
powers in connection with a declaration of war that he has with re- 
gard to matters of ordinary legislation. Judge Baldwin^ remarks 
that there may be said to be three stages in a declaration of war: 
(1) Doings o* the President in informing Congress of the state of 
relations with the Power against which war may be declared; (2) do- 
ings of Congress in making the declaration; and (3) approval of the 
declaration by the President. 

In the first place, then, the President, under the consti- 
tutional provision requiring that he "shall from time to time give 
to the Congress information of the state of the Union, and recom- 
mend to their consideration such measures as he shall Judge neces- 
sary and expedient", is empowered to recommend a declaration of 
war, first communicating to Congress the facts and circumstances 



8 Memoirs of John Quincy Adams . IT, 32; but of. XII, 51. 

9 It is rather curious to note that Jefferson was for a time 
under the impression that a two-thirds majority was required to pass 
a declaration of war. He later admitted his error on this point. 
Writings of Thomas Jefferson . VII, 220, 222, 243-244. The Hew York 
ratifying convention 0* 1778 proposed an amendment requiring a two- 
thirds majority of each house to declare war, and a similar amend- 
ment was proposed by the Hartford Convention in 1814, neither of 
which received any serious consideration. See The Federalist (Ford 
ed.), Appendix, 643, 689. 

10 S. E. Baldwin, "The Share of the President in a Declaration 
of War", Am. Jour. Int. Law . XII, 1-14. 

11 Art. IT, Sec. 3. 



83. 



that in his opinion call for such declaration. The President, 
through this power o^ giving information to Congress and of reoom- 
mending measures to be taken, may largely influence that body in de- 
termining upon war or peace. He may withhold certain information, 
the disclosure of which would vitally affect the action of Congress. 
He may, if he is desirous of war, reveal only such information as 
will tend to inflame Congressional opinion, or he may select a 
moment for his disclosures and recommendations when opinion is ex- 
oited and ready to hear the worst. 

Thus Jefferson charged that President Adams "kept out of 

12 

sight in his speech" (of May 16, 1797) Spanish protests and de- 
mands, and "thereby left it to be imagined that France is the only 
power of whom we are in danger;" that the Executive had war in con- 
templation, with the expectation that the legislature "might catch 
the flame"; that the convocation of Congress was in fact only "an 
experiment on the temper of the Nation, to see if it was in uni- 
son". 14 Both Jefferson and Madison charged that the X Y Z corres- 
pondence was laid before Congress for the particular purpose of 
arousing the war temper of that body and of the country. In his 
message of March 19, 1798, 15 the President, without revealing the 
content of the famous despatches, spoke psssimistically about the 
accomplishments of the mission to France, urged the adoption of 
defensive measures, and announced the action he himself proposed to 
take. Referring to this message, Madison wrote: "The Constitution 
supposes, what the History of all Governments demonstrates, that the 

12 Richardson, Messages and Papers of the Presidents , I, 233- 

£39. 

13 Congress had been summoned to meet in special session May 
15, 1797. 

14 Writings of Thomas Jefferson . VII, 126, 138-139, 146,148-14®. 

15 Richardson, op. cit ., I, £64-265. 

J 



84. 



Executive is the branoh of power most interested in war, find most 
prone to it. It has accordingly with studied cere, vested the ques- 
tion of war in the Legislature. But the Doctrines lately advanced-*- 6 
strike at the root of all these provisions and will deposit the 
peace of the Country in that Department which the Constitution dis- 
trusts as most ready without cause to renounce it. For if the opinion 
of the President}- 7 not the facts and proofs themselves, are to sway 
the judgment of Congress in declaring war, . . it is evident that 
the people are cheated out of the best ingredients in their Govern- 
ment, the safeguards of peace which is the greatest of their bless- 
ings." 18 

Madison was equally vigorous in referring to the actual 

revelation of the famous papers. "It is easy to foresee," he wrote, 

"the zeal and plausibility with which this part of the despatches 

will be inculcated, not only for the gene ral purpose of enforcing the 

war measures of the Executive . but for the particular purpose of 

diverting the public attention from the more important part, which 

shows the speech and conduct of the President to be now the great 

obstacle to accommodation . . . The readiness with which the papers 

19 

were communicated and the quarter proposing the call for them, 



16 Madison evidently refers here to the proposed measures of 
defense, especially the announcement of Adams that armed merchantmen 
of the United States would now be permitted to sail, whereas before 
the collectors had instructions to hold such vessels in port. See 
Richardson, op. cit . I, 265; also supra., 67-68. 

17 A dam 8 had expressed his opinion, formed from an examination 
of the correspondence, that the objects of trie mission to France 
could not be accomplished "on terms conpatible with the safety, the 
honor, or the essential interests of the nation", and that the nati 
should prepare for defense. Richardson, op. cit ., I, 264. It should 
be remembered that the correspondence had not yet been laid before 
Congress . 

18 ' writings of James Madison . VI, 312-313. 

19 The IY Z correspondence was submitted to Congress April 3, 
1798, in response to a resolution of the House calling for the same, 
passed April 2. See Annals of Cong .. 5 Cong., II, 1370, 1371. 



86 



would be entitled to praise if a mass of other circumstances did not 
force a belief that the view in both was more to inflame than to in - 
form the public mind."*^ 

A study of the debates in Congress shows that Jefferson 
and Madison were not alone in their contention that the President 
was manipulating the situation and molding Congress to war. Mr. 
Livingston suggested that since Congress had been practically called 
upon to decide between peace and war, it was entitled to see the 
whole correspondence. "The right to judge what it was proper to 
publish in consideration of the public safety and interest, should 
not be transferred to the President, as he might withhold such parts 
of the papers as might prevent a correct judgment being formed upon 
them."*^ Mr. Gallatin had opposed the call for the papers and favor- 
ed going ahead at once to determine on peace or war, since, as he 
said, "if it had first been determined to call for further informa- 
tion, how d id he know that it would be given , or . if given , whether 
it would be _in a mutilated state . rather than which he would choose 
to act without it upon the Message of the President alone. • • It 
was true, when the concessions were made known, it was possible that 
he might differ in opinion from the President as to their reason- 
ableness; but this House has no control over the President in this 
respect. Therefore, the information which he has given to the 

House is sufficient for them; and they ought now to say whether they 

22 

will go to war or remain in peace." Many members expressed their 
belief that the President's message was tantamount to a declaration 

20 Writings of James Madison , VI, 316; cf. Writings of Thomas 
Jefferson . VII. 255-256. 

Tl Anns Is of Cong .. 5 Cong., II, 1359. 
22 Ibid .. 13g5T~^ 



86. 



£3 

of war against France. 

In fact, the messages and actions of the President were 
considered as so inflammatory of the war passions, that Mr. Sprigg 
of Maryland, in order to counteract that effect, proposed a resolu- 
tion "that it is not expedient for the United States to resort to 

24 

war against the Republic of France". Such a negative resolution 
was very unusual, and its propriety was strongly questioned, both 
in Congress and out. Madison admitted that it was "in ordinary 
cases . • . certainly ineligible", but he thought that cases might 
obviously arise for which it was proper: w l. where nothing less thaji 
a declaration of pacific intentions from the department entrusted 
with the power of war, will quiet the apprehensions of the consti- 
tuent body, or remove an uncertainty which subjects one part of them 
to the speculating arts of another; 2. where it may be a necessary 
antidote to the hostile measures or language of the Executive De- 
partment. . ; 3. where public measures or appearances may mislead 
another nation into distrust of the real object of them, the error 
ought to be corrected; and in our Government where the question of 
peace or war lies with Congress, a satisfactory explanation cannot 
issue from any other Department" Madison and a large number in 
Congress were convinced that an obvious case had arisen, that the 
President was deliberately trying to lead Congress into a declara- 
tion of war. 

Whatever the truth in these charges against Adams, the 
above-mentioned resolution failed of passage, and it is clear that 
when the crisis was at its height in 1798, the President had brought 



23 See, for example, the remarks of Giles and Galletin. Annals 
of Cong. . 5 Cong., II, 1323, 1364. 
54 Ibid., 1319. 

25 See the debate on the resolution. Ibid . . 1319-1357. 
26 Writings of James Madison , VI, .317-31 8. 



il M 



to>u it 



D o *!<f 



87. 



matters to a point where "both Houses were safely committed to any 

27 

policy of vigor which he would recommend. " The sentiment of Con- 
gress was perhaps best expressed by Mr. Otis when he said that "the- 
President having declared his orinion that there is no hope of suc- 
cess from that mission, he wished for nothing further to convince 
him of the propriety of going into the different defensive measures 
proposed." 28 Under the President's leadership, therefore, acts of 

hostility were authorized, 29 and for more than two years a "limited 

30 

or imperfect war" was carried on. Even so, peace was undoubtedly 
"the first object of the nation", as Jefferson had grudgingly acknow* 
lodged?* no formal declaration was asked for or made, and Adams is 
generally credited with having "probably saved the country from war 
and from internal dissensions". Certainly there was not a moment 
during his entire administration when Adams, by a word, might not 
have secured from Congress a declaration of war. He refrained from 
speaking the word, and a disastrous war was avoided. 

President Jefferson was also able to prevent a declaration 
of war during his administration, though under somewhat different 
circumstances. The long series of incidents arising from the strain- 
ed relations with Great Britain had culminated on June 22, 1807, in 

the attack of the Leopard upon the Chesapeake . The country was 

33 

aroused as it had not been since the battle of Lexington. "Never? 
says an eminent historian, "had a more just cause for war been given 

27 Bassett, The Federalist System . 237. 

28 Annals of Cong .. 5 Cong. > II. 1370. 

29 Acts - of May 28 and July 9, 1798; ibid . . 5 Cong., Ill, App. 
3733, 3754. 

30 Bas v. Tingy . 4 Dall. 37; Gray y. U. S .. 21 Ct. of CI. 340, 
in Scott's Cases on International Law . 452. 

31 Writings . VII. 149. 

32 Bas6ett , op. cit .. 251; cf. also BaBcom, Growth of National* 
ity . 26. 

33 Writings of Thomas Jefferson . IX, 105. 



88 



34 

to any people. Never had a people called more loudly for war. 1 * 

Jefferson "believed that It was strictly within the province 

of Congress to determine whether the outrage was a proper cause of 

war, and that the Executive should be careful not to perform any 

act that would commit Congress to a particular course. He might 

therefore have summoned Congress at once to meet in special session 

to consider the extraordinary situation that had arisen. Jefferson 

and his Cabinet knew, however, that were Congress to meet while the 

excitement was at its height, it would be difficult to prevent en 

immediate declaration of war, or at least some action that would 

hopelessly embarrass the negotiations about to begin at London. He 

hoped that a delay would bring cooler counsels and some chance for 

adjustment, that, "having taught so many useful lessons to Europe, 

we may • • • add that of showing them that there are peaceable meanB 

of repressing injustice, by making it to the interest of the ag- 

35 

greBsor to do what is just, and abstain from future wrong". He 

therefore issued a proclamation setting forth the grievances of the 

United States and declaring the ports closed to the armed ships of 
36 

England; but, under the pretence that Y/ashington was too sickly 

a place for Congress to come to in the summer, its date for assembliiii|g 

37 

was fixed at October £6. 

The delay proved useful. The British government sent a 

minister to adjust the Chesapeake affair, recalled the Admiral who 

38 

gave the order for the attack, and disavowed his act. Thus Jef- 
ferson, if he did not succeed in finally averting a war with Greet 
Britain, at least, by refusing to summon Congress at the moment of 



34 Monaster. History of the People of the United States . III. £62 

35 Writings . IX. 87-88. 

36 Richa rdson, op. cit .. I, 422. 

37 Ibid . . 424. 

38 EcEaster, op. cit .. Ill, 263, 269-270. 



89. 



excitement, delayed the war for several years. 

President Madison aroused the war passion of Congress in 

1812 by submitting to it the "Henry correspondence", which aimed to 

show that Great Britain was attempting to sever the New England 

39 

states from the Union. The British Government denied any connec- 
tion with the Henry mission; no evidence was produced to show that 
the Hew England states had contemplated any plan of secession; and 
the Federalists charged that the entire affair had been trumped 
up by Madison in order to augment the feeling for war, evidence 

being produced to show that the President had paid $50,000 for the 
40 

papers. Madison, however, was slow in taking advantage of the 
war passion he had thus aroused. Congress, now thoroughly in favor 
of war, fumed and fritted at the delay, but hesitated to act with- 
out a recommendation from the President. Finally, a delegation 
from Congress, headed by Clay, waited upon the President and de- 
clared the readiness of the majority in Congress to vote the war, 
41 

if recommended . Thereupon Madison sent a special message June 

42 

1, 1812, recommending war, to which Congress responded by passing 
the declaration on June 18. 

The significance of this is not so much in the apparent 
domination of the President by the majority element in Congress, as 
in the fact that Congress, even though fully convinced of the neces- 
sity for war end fully determined upon such action, yet found itself 

39 For the Henry correspondence, see Annals of Cong . . 12 Cong., 
I, 1162-1181; for Madison's message, Richardson, op cit ., I, 498. 

40 Updyke, Diplomacy of the War of 1812 , 126-127. 

41 Writings of James Madison , VITI, 192, n; Joseph Cale's ac- 
count in Am. Hist. Rev. XITI, 309; cf. also accounts in Hildreth, 
History of the United States , VI, 298; Von Hoist, Constitutional and 
political History of the United States . I, 230; McMaster, op. cit .. 
Ill, 448 — all to the effect that Madison was promised a renomi- 
nation if he would send Congress a war message. 

42 Writings . VITI, 192-200; Richardson, op. cit .. I, 499-505. 



90. 



unwilling to act without first securing the recommendation of the 
President , Had the President been less hasty in passing judgment 
upon, and submitting to Congress, the Henry correspondence, the 
authenticity of which had at least not been thoroughly established; 
had he delayed his war message a little longer, the new conciliatory 
attitude of the British Government might have been met and the war 
of 1812 very likely altogether averted. These are the facts that 
John Adams probably had in mind when he wrote in 1815: "Mr. Madi- 
son' 8 administration has proved great points, long disputed in 
Europe and America, 

1, He has proved that an administration under our present 
Constitution can declare war, 

£• That it can make peace. . ."425 

President Polk came into office in 1845 with the avowed 
purpose o^ acquiring California and, later, also New Mexico. He 
tried first to secure them peacefully by purchase, and for that pur- 
pose sought an appropriation of a million dollars from Congress, 
concealing the real object under the euphemistic phrases of "effect- 
ing an adjustment of our differences with Mexico", and "the conclu- 

44 

Bion of a Treaty of boundary". Failing in this, Polk, as early 
as February, 1846, declared himself in favor of "strong measures" 

45 

against Mexico, and from that time was steadily determined on war. 
The sending of a war message was postponed, however, partly because 
of the unsettled state of the negotiations with Great Britain over 
the Oregon question, but probably rather because Polk was seeking 

43 Life and Works of John Adams . X, 167-168. 

44 McMaster. op. cit .. VII. 452, 439; Reeves, American Diplo - 
macy under Tyler and Polk . 272; Diary of James K. Polk . I. 34-36. 
303, 306-308, 310-313, 317. 

45 Reeves, op. cit. . 284, 287, 288, 294; Rhodes, Historical 
Essays . 211; Diary of James K. Polk . I, 233-234, 319, 337, 343. 



91. 



something that might serve as a plausible cense for war. 

Certain sundry claims of American citizens upon Mexico 

had been a matter of difficulty and negotiation between the two 

46 

governments since 1836, and were still largely unsettled. The 

President now hit upon these claims as the "aggravated wrongs" which 

47 

should be the basis for the complaints against Mexico, although 

48 

"many of the claims were exorbitant and some of them fraudulent". 
Meanwhile, General Taylor had been sent to occupy the disputed ter- 
ritory beyond the Uueces River, had advanced to a position opposite 
Matamorae where a strong Mexican force was located, and Polk seemed 
to think there was some hope of a collision in the near future, ^ 
which would give him more satisfactory ground for his war messege. 

For some time, however, no hostilities occurred, the Presi- 
dent became impatient of delay, and on May 9 the Cabinet agreed that 
a message recommending war should be prepared and submitted by the 
following Tuesday (May 12), whether the Mexican forces had committed 
any act of hostility against Taylor or not. Buchanan, the Secretary 
o* State, h8d already drawn up a statement of the causes of corn- 
plaint, the President had decided to substitute practically the pre- 
cise language he himself had used in dealing with the Mexican claims 
in his annual message of the year before, when suddenly the situation 
was changed by the receipt of news thet same evening from Taylor 
that the Mexicans had attacked and hostilities had begun. The Cabi- 
net was immediately summoned again, and it was agreed that a mes- 
sage should be sent recommending "vigorous and prompt measures to 

50 

enable the Executive to prosecute the war. 

46 Reeves, op. cit .. 76, 86, 93, 96, 107-108. 

47 Mary of James K. Polk , I, 363, 377, 382. 

48 Reeves, op. cit. , 86.""" 

49 Diary of James K. Polk . I, 380, (May 6, 1846). 

50 Ibid .. 384-386. 



92 



Polk's opportunity had come. He recognized that "public 
excitement in and out of Congress was very naturally very great"; 
unlike Jefferson, he determined to play upon that feeling, so he 
spent Sunday in writing his message, and on Monday, May 11, it was 
submitted to Congress. There was now no mention of the long-unset- 
tled claims as the "aggravated wrongs" borne by the United States; 
the entire emphasis was laid on the fact that the Mexicans had at- 
tacked American forces and shed American blood on American soil, 

end that since war had thus been begun by Mexico, the issue must be 

51 

accepted and hostilities carried on with vigor. 

In spite of the fact that there had been, 8nd still was, 

52 

bitter opposition in Congress to a war with Mexico, the President's 

message was quickly responded to. In two hours, of which time one 

and a half hours were occupied in reading the documents accompanying 

the President's message, the House of Representatives passed the bil| 

reciting that war existed by act of Mexico and providing for the 

53 

support of hostilities. The Senate could not be hurried quite 
so rapidly, but by evening of the next day (May 1£), it had also 
given its sanction; and the President's actions were sustained. 

Whether or not Congress would have sustained the President 
and authorized hostilities, had not the news from Taylor changed the 
situation from an admitted war of aggression to an ostensible war of 
defense, it is impossible to say with any degree of certainty. Cer- 
tainly, as Reeves suggests, "Taylor's skirmish with the Mexicans 
was an occurrence that saved Polk from a dangerous situation". 

51 Richardson, op. clt .. IV, 437-443. 

52 A motion in the House of Representatives for a formal de- 
claration of W8r was rejected by a large majority. Cong. Globe . 
29 Cong., 1 Sess., 792, 794. 

53 Statement of Senator Benton, Diary of James K. Polk. 1.392. 

54 Reeves, op. cit. . 298. 



93. 



Nevertheless, Polk had been able to so handle matters as to make an 
armed collision almost inevitable, and he took advantage of the ex- 
citement thus aroused to^ secure from an unwilling Congress a strong 
backing for his war policy. His actions, says Rhodes, "illustrate 
the power inherent in the executive office" • Certainly, but for 
the action of the President, the war would not have been sanctioned 
by Congress; because of the action of the President, the war was 
sanctioned, and the objects sought by the President were obtained. 

Had President Grant been eager for war with Great Britain, 
a mere message and recommendation from him to that effect would 
undoubtedly have brought on such a conflict. The unanimous passage 
by the House of Representatives, in 1866 of a bill modifying the 

neutrality Isws in such a way as to permit the sale of war-ships and 

56 

munitions to other powers; the sympathy and support given to the 

Fenian movement against Canada; the resolution proposed in the 

Senate in 1667 for the recognition to Abyssinia during its war with 

Great Britain of the same rights which Great Britain had recognized 

57 

to the Confederacy; the action of the Senate in 1869 in rejecting 

by a vote of 54-1 the treaty providing for a joint high commission 

to pass upon the claims of subjects of either government 8geinst 
58 

the other; speeches such as that of Senator Sumner delivered dur- 

59 

ing the consideration of the above-mentioned treaty; the angry and 
excited discussion in the press of the two countries — these vari- 
ous incidents shov/ed that the bitter feeling aroused against Great 

55 Historical Essays . 212. 

56 Cong. Globe , 39 Cong., 1 Sess., Pt. V, 4194, 4197. See 
Sec. 10, which was the addition. The debate on the bill shows 
that it was 8imed particularly at Great Britain. 

57 Ibid . . 40 Cong., 1 Sese., 810. 

58 Sen. 3Ss. Jour .. XVII, 163. 

59 On April 13, 1869. 7/orks of Charles Sumner . XIII, 53-93. 



94 



AO 

Britain during the Civil Wer had assumed hostile form; that, as 
an eminent authority has expressed it, "in the opinion of the 
majority, the country had a just cause for war in the escape of the 
Alabama and the Florida". 61 

The President and his wise Secretary of State, Hamilton 
Pish, chose to disregard this sentiment of the country and of Con- 
gress for an unyielding and belligerent attitude towards Great Bri- 
tain. On the other hand, the two points in the American case which 

h8d given especial offense to the British were allowed to recede 

62 

into the background, if not conceded altogether, negotiations 
were persistently carried on for the arbitration of the Alabama and 
Plorida claims, and the peace was preserved. 

President Cleveland, on the other hand, very nearly preci- 
pitated war with England, when in his special message of December 
65 

17, 1895, he made his strong declaration with regard to the Vene- 
tuelan boundary situation. The President stated that arbitration 
hed been declined by Great Britain, and proposed an independent in- 
quiry and report by a strictly American commission. "When such re- 
port is made and accepted", he said, "it will, in my opinion, be the 
duty of the United States to resist by every means in its pov/er, as 
a willful aggression upon its rights and interests, the appropria- 
tion by Greet Britain of any lends or the exercise of any governmen- 
tal jurisdiction ov^r any territory which after investigation we 

64 

have determined of right belongs to Venezuela". Though the coun- 



60 Cf. Dunning, Reconstruction: Political and Economic ,160^16^ 

61 Rhodes, Historical Esrays , 218-219, 

62 These were the claim that wrong- had been done to the United 
States by the recognition of the Confederates as belligerents, and 
the demand for compensation for "national" or "indirect" losses. 

See Dunning, op. oit .. 167. 

63 Richardson, op. cit .. IX, 655-658. 

64 Ibid., 658. 



95. 



try had up to this time been ignorant of the peremptory demands of 
the administration, and the message threatening war came therefore 
as en unexpected shock; though Congress and the President had here 
tofore quarreled over almost every question of consequence. Congress 
now sustained the President in his demands and passed almost with- 
out debate, the bill for the appointment of the commission asked 

L»." -m* * u 

It is not important in this connection whether or not the 
President had made a valid interpretation end a correct application 
of the Monroe Doctrine. The important thing to notice is that he 
had raised an issue which meant simply this, that if arbitration 
were refused by Great Britain, the United States would mark the 
boundaries of one of her colonies and compel the mother-country to 
accept the limits so prescribed; that a hostile Congress had ac - 
cepted without question the issue so raised ; and that the President 
had thereby placed the United States and Greet Britain unexpectedly 
in a position where one or the other must openly recede from its 
ennounced intention, if a conflict was to be averted. A conflict 
was averted, but only by reason of England's conciliatory agreement 
to arbitrate; and it is worthy of note that, as one authority has 
expressed it, "only in the case where he (Cleveland) was led, by 
whatever influences, to offer a gross insult to Groat Britain, such 
as would not have been borne for a moment by this country from any 
other without prompt resentment, did he receive the unanimous sup- 

65 Dewey, National Problems , 308; Latane, Prom Isolation to 
Leadership . 49 • 

66 Cong. Record , XXVIII, Pt. I, (54 Cong., 1 sess.), 234-235, 
255-265; Dewey, op. cit .. 310. 



96. 



67 

port of "both houses. H 

In the case of the diff lenities with Spain over the Cuban 

question, it has been raid that "Presidents Cleveland and McKinley 

kept the national legislature from a declaration of hostilities 

68 

for more than two years before final action was taken." It is 
true that the temper of Congress was for war long before the Presi- 
dent was ready to recommend such a step; it is likewise undoubtedly 
true that the President might have delayed such recommendation still 
longer, and possibly -- almost certainly — have averted war alto- 
gether. 

Congress in 1890 had, by concurrent resolution, requested 
the President "to invite from time to time, as fit occasions may 
arise, negotiations with any government with which the United States 
has or may have diplomatic relations, to the end that any differen- 
ces or disputes arising between the two governments which cannot be 

adjusted by diplomatic agency may be referred to arbitration, and 

69 

be peaceably adjusted by such means". In the spring of 1898 Spsin 

had made several concessions, which, according to eminent authority, 

"fully covered" the expressed wishes of the United States for 
70 

Cuba, and on March 31, she proposed arbitration of the Main con- 
71 

troversy. General V/oodford, the American minister to Spain, evi- 
dently did not consider the situation hopeless, for he wrote: "I 
know that the Queen and her present ministry sincerely desire peace 



67 Bradford, The Lesson of Popular Government . I, 358, n. Other 
authorities say that President Cleveland, in this instance, recom- 
mended "demands Great Britain could hardly regard as anything but 
unfriendly." Ogg & Beard, National Governments and the World gar ,10lt« 

68 Young, The Mew American Government and Its Work . £7. 

69 Yale Rev. . IX, 402. 

70 For these concessions of March 30, March 31, and April 9, 
Bee For. Itel.. 1898 . 7£5, 762, 750; cf. also Benton, Internat ional 
Law and Diplomacy of the Spanish American War . 83-91. 

71 Benton, op. cit ., 85. 



97. 



and that the Spanish people desire peace, end if you can still give 
me time and liberty of action I will get for you the peace you de- 
sire so much and for which you have labored so hard;" and on 
April 10, in a personal appeal to the President: "I hope that noth- 
ing will now be done to humiliate Spain, as I am satisfied that the 
present Government is going, and is loyally ready to go, as fast 
and as far as it can.""^ 

But neither the above-mentioned resolution of Congress, 

74 

the overtures of Spain, the proffered mediation of the Powers, 

nor the pleadings of the American minister, had any effect on the 

75 

President. No reply was made to the offer of arbitration, and 

on A r ril 11, the message recommending war went to Congress, with 

the usual and natural response. The vitsl question, says Benton, is 

"whether the President did not yield prematurely and whether he had 

exhausted the resources of diplomacy;" 7 ^ he answers that question 

by saying that in the opinion of neerly all writers on international 

law the prrticular form of intervent io/i in 1696 was "unfortunate, 

77 

Irregular, precipitate, and unjust to Spain". 

The influence of President Wilson with regard to the 
events of the recent world war, and the readiness of Congress to fol 
low his recommendations — to be a "peace Congress" when the Presi- 
dent desired peace, to be a "war Congress" when the President recom- 
mended war -- are too evident to require any extended comment. Al- 



72 For. Rel. 1696 . 732. 

73 Ibid .. 747": 

74 On April 6 the Ambassadors of Great Britain, Germany, Aus- 
tria, France, Italy, and Russia, united in a personal appeal to 
President McKinley for a peaceful adjustment. Two days later, even 
stronger representations were made at Madrid. Benton, op.cit . . 69-90. 

75 President McKinle^ , in his message to Congress, dismissed 
this offer of arbitration with these laconic words: "I made no reply 

76 Benton, op. cit . . 95. 

77 Ibid. . iWl 



98. 



though basing his claim for re-election in 1916 largely on the 
ground that hp had "kept us out of war", with the presumption that 
he would continue to do so in the future, end carrying with him a 
Congress presume hly committed to the same policy; and although stand 
ing, as late as January, 1917, for "p^ace without victory", 78 Presi- 
dent Wilson felt compelled by the turn of events to recommend war 
upon Germany in his address of April 2, a recommendation at once 
adopted by the "peace Congress" with very little opposition. 79 

Although the governments allied with Germany could with 
difficulty be distinguished in method and policy from the government 
of Germany — the Austro-Hungarian government especially having 
openly avowed its endorsement of Germany's submarine policy, and its 
ambassador having been implicated in plots to destroy our factories 
— , the President was not at that time ready to make war upon any of 

them, because, as he said, "they have not made war upon us or chal- 

80 

lenged us to defend our right and our honor." Congress therefore 
took no action towards declaring war against these countries. 

However, by December of the same year, President 7/ilson 
had discovered that "one very embarrassing obstacle that stands in 
ottr way is that we are at war with Germany, but not with her al- 
lies." He therefore recommended a declaration of a state of war 
with Austria-Hungary, that nation being "not her own mistress, but 
simply the vassals of the German Government." The President admit- 
ted that the same logic would seem to demand a declaration of war 
also against Turkey and Bulgaria, since "they also are the tools of 
Germany", but he declined to recommend such action against these 



78 See his address to the Senate, Jan. 22, 1917. McKinley, 
Collected Materials for the Study of the War (1st ed.), 9-11. 

79 Joint Resolution o* Apr. 6, 1917. Ibid . , 137. 

80 Address to Congress, Apr. 2, 1917. Ibid . . 15. 



99. 



countries, because "they are mere tools, end do not yet stand in 
the direct path of our necessary action. "81 in each case Congress 
followed the recommendation of the President without question, de- 
claring war upon Austria-Hungary, 82 and, despite some feeling that 

Turkey and Bulgaria should have been included, 83 no decleration was 

84 

ever made against those countries. 

These examples and incidents from the history of our own 
country illustrate clearly the very important position conceded to 
the President with regard to a declaration of war. They would seem 
to bear out the statement of one of our Congressmen, when he said 
in a recent speech: "History shows . . • that while Congress does 
possess that power (to declare war), in reality, the President exer- 
cises it. Congress has always declared war when the President de- 
sired war , and Congress has never attempted to declare war unless 
the President wanted war . That was true of the war of 1812. It 
wae true of the Mexican war. It was true of the Spanish-American 
war. It was true of this war. It will probably be true of every 
war in which the nation engages so long as the present method of 
declaring war continues." 8 * 5 



81 Address to Congress. Dec. 4, 1917. N. Y . Times Current Hisft . 
Mag., VII, 66-67 (Jan., 1918). For further reasons why Turkey and [' 
Eulgaria were omitted, see ibid . , 74. 

82 Joint Resolution oFUec. 7, 1917. Ibid . , 69 

83 Cf. attitude of Senator Lodge. Ibid . . 75. 

84 Diplomatic relations were broken off with Turkey, Apr. 20, 
1917, but the initiative had been taken by that country; with Bul- 
garia relations were not even severed during the entire course of 
the war. 

85 Congressman Dill, Cong. Record . 65 Cong., 3 Sess., (Jan. £1, 
1919), 1624; see also an editorial in The Nation . Mar. 1, 1919; cf. 
Pinley & Sanderson, The American Executive and Executive Methods . 260; 
Bryce, American Commonwealth . I. 54; Bradford, The Lesson of Popular 
Government . I. 559; Case. Constitutional Histor.y of the United States , 
232-233; Young, The New American Government and Its Y/ork . 27; Schoult} 
er. Constitutional Studies , 138. 



100. 



The power of the President to recommend war and to com- 
municate facts as a basis for such recommendation gives him also an 
opportunity to set forth the grounds and to explain the purposes of 
the nation in entering upon war. Since the ratification of the 
Hague Convention of 1907, such a statement of reasons is required 
before the beginning of hostilities. These are the terras of the 
article in question: n The Contracting Parties recognize that hos- 
tilities between them must not commence without a previous and un- 
equivocal warning, which shall take the form either of a declaration 
of war, giving reasons , or of an ultimatum with a conditional decla- 
ration of war."®** It would seem, from the language of the article, 
that the body in any country to which is entrusted the power of de- 
claring the war was? considered the proper body to specify the rea- 
sons for such declaration. 

As a matter of fact, the uniform practice in the United 
States has been otherwise. Even before the adoption of the Hague 
Convention, the President, in his messages to Congress recommending 
wer, has always stated what seemed to him to be the reasonable 
grounds for such action. There is no doubt that Congress, under its 

power to pass the declaration, might likewise have expressed its 
87 

reasons, which might agree with those of the President, or might 
differ, either wholly or in part. The President would be bound to 

88 

accept or reject the declaration as psssed by Congress, as a whole. 



86 Convention relative to the Commencement of Hostilities, 
Art. 1, Higgins, The Hague Peace Conferences . 198. 

87 "It may be said. . .that this power (of declaring war) 
naturally includes the right of Judging whether the nation is or is 
not under obligations to make war. . • However true this position 
may be, it will not follow that the executive is in any case exclude^, 
from a similar right of judgment, in the execution of its own func- 
tions." Works of Alexander Hamilton . IV, 142. "The power to judge 
of the ce.uses of war, as involved in the power to declare war, is 
expressly vested, where sll other legislative powers are vested, thalt 
is, in the congress of the United States." Writings of James Ksaiso 
jl^-a&4,; of . ibld^ X£2 , 1&L*__ 



88 S. E. Baldwin, op . cTt . , ^Am . Jour .Iht .Law. XII. 10. 



101. 



He could not accept the conclusion and disapprove of the grounds 
given for the action. Congress h8s, however, contented itself with 
a mere formal declaration of war or a formal recognition of a state 
of war as already existing, without adding any specific statement 
of reasons or objects. Long reports have been made in every case 
by the Foreign Relations committees of each house, justifying the 
action about to be taken, but in no case has the statement of rea- 
sons embodied in these reports been incorporated into the declara- 

j 

tion itself, not even since the adoption of the Hague Convention. 
Congress, in thus refusing or neglecting to give a specific state- 
ment of its own, has apparently recognized the President as having 
the right and as being the most suitable authority to set forth to 
the world the grievances of the nation. At all events, the Presi- 
dent, rather than Congress, is now regarded, both at home and abroad; 
as the spokesman of the nation with regard to the reasons and ob- 
jects of a war, and his statements are generally accepted as com- 
mitting the nation to the policies therein laid down. 

The power of the President with regard to a declaration 
of war does not end with the functions of communication of informa- 
tion, and of recommendation. A declaration of war, like any other 
bill, order, resolution, or vote requiring the concurrence of both 
houses of Congress, must be submitted to the President for his ap- 
proval or disapproval.^ If it were possible to imagine Congress 
as passing a declaration of war without first being certain of the 
President's approval, or in direct opposition to his known views 

89 Constitution . Art. I, Sec. 7, CI. 2, 3. The declarations 
in the cases of the War of 1812, the Mexican 7/ar and the Spanish- 
American War were passed in the form of Acts of Congress; those 
against Germany and Austria-Hungary in the form of joint resolu- 
tions. 



102. 



(as is often done with other measures), the President could exercise 
his power of veto and thus prevent the decleretion from going into 
effect. Theoretically, Congress might in turn, by a two-thirds 

90 

majority, declare war even against the wishes of the President. 
Strictly speaking, it is true, as an eminent Senator has said, that ; 
"the President not only cannot declare war, end it is not only con- 
ferred in terras upon Congress, but even if the President should be 
opposed to a proposed war, two thirds of each Branch can declare 
war. It. would not require his approval. There is the most impor- 
tant of all foreign relations. It does not belong to the President'.^ 
In practice, however, such a situation cannot be imagined. The suc- 
cessful prosecution of a war would be impossible without the hearty 
cooperation of that department of the government which has in its 
sphere the actual direction end management of the war. Consequently,, 
though Congress technically has the power, it has chosen to follow 
rather than to lead with respect to a declaration of war. It always 
has sought, and it is safe to assume thrt it always will seek, to 

8ssure itself of the President's approval before passing or even 

92 

proposing a declaration of war. 



90 See Schouler, Constitutional Studies . 137. 

91 Senator Bacon, Cong. Record . XL. Pt .5. (59 Cong. ,lSess. ), 2132. 

92 "Certain it is that the war with France was begun that way, 
•Congress following the lead of, and seeking knowledge from, the 
President at every step." Sen. Doc. No. 56 , 54 Cong., £ Sess., 17. 
A recent newspaper dispatch with regard to the Mexican situation 

is significent as illustrating the absolute subserviency of even 
a hostile Congress in such matters: "President Wilson is in com- 
plete control ofthe direction of American policy in dealing with 
Mexico. . . If President Wilson should indicate that Congress should 
adopt the PpII resolution requesting a severance of diplomatic rela- 
tions with Mexico and withdrawal of recognition of Cerranza, there 
would be little opposition to the papsage of the measure. If, how- 
ever, he should oppose such a step, the resolution will be modified 
to confor to his views or shelved." Chicago Tribune ( Staff Cor - 
respondence ) . Dec. 8, 1919. 



103 



After the enactment end spprovel of a declaration of war, 

it becomes the right and duty of the President to give public notice 

93 

of it to all neutral powers. The Hague Convention of 1907 re- 
quires such notice to neutrals, without specifying by whom it is to 
94 

be given. The President, however, as the sole organ of communica- 
tion with foreign powers, is the natural authority for the exercise 
of that function, and there has been no dispute as to his right or 
duty in that respect. The exercise of the function is of consider- 
able importance, since by the article referred to a state of war is 

to be regarded as of no effect towards neutrals until they have re- 

95 

ceived such notification, and hence a delay or neglect in fulfil- 
ling the requirement of the Convention might affect the validity of 
captures at sea and other warlike operations involving neutral 
rights. The chief ends of such announcement to neutrals are, there- 
fore, to give formal notice of the fact of the declaration and the 
time of its going into effect. 

In addition to notifying neutrals, the President usually 
elso gives official notice of the existence of a state of war to 
the citizens of this country. This he does by means of a public 
proclamnt ion. Presidents Madison end Polk both issued such procla- 
mations, merely announcing to the country that war existed by act 
of Congress and exhorting the people to exert themselves "in pre- 
serving order, in promoting concord, in maintaining the Authority 
and the efficacy of the laws, and in supporting and invigorating 
all the measures which may be adopted by the constituted authori- 

93 8. E. Bsldwin, op. cit .. Am. Jour. Int. Law. XII, ll« 

94 Convention relative to the Commencement of Hostilities, 
Art. £., Higgins, op. cit. , 199. 

95 Ibid. 



ties for obtaining a speedy, a just, end an honorable peace." 

There does not appear to be any express constitutional or 
statutory authority for the issuance of such proclamations, though, 
if any were needed, it might be implied from the power to "take care 

97 

that the laws be faithfully executed." It may also be inferred 
from an act passed in 1798. This act provided, among other things, 
for the removal of enemy aliens "whenever there is declared a state 
of war between the United States and any foreign nation or govern- 
ment, or any invasion or predatory incursion is perpetrated, attempt | 
ed, or threatened against the territory of the United States, by any; 
foreign nation or government, and the President makes public procla - 
mation of the event ." It further authorized the President, "in any 
such event, by his proclamation thereof , or other public act", to 

establish the necessary regulations for the conduct, restraint, 

98 

residence, or removal of such aliens. President Wilson, in his 

proclamation of April 6, 1917, announcing the state of war with 
99 

Germany, referred specifically to this section of the Revised 
Statutes for his authority, though he was probably referring rather 
to the authorization to proclaim alien enemy regulations than to 
the mere announcement of a state of war. President McKinley issued 
several proclamations after the declaration of war against Spain, 
but none announcing the existence of a state of war. It was pro- 
jbably thought unnecessary since the war had already been going on 

96 Richardson, op. pit ., I, 512; IV, 470. 

97 Constitution, Art. II, Sec. 3. 

98 Act of July 6, 1798, Annals of Cong . , 5 Cong., Ill, App., 
3753. See also U. S. Rev. Stats ., sec. 4067. 

99 Tert in McKinley, Collected Materials for the Study of the 
War, 169. 



106 



for several days before the retroactive declaration was adopted. 
The President can hardly be said to be under any obligation to issue 
such a proclamation, since the passage of the declaration should 
be sufficient notice to the country of the existence of a state of 
war. He has generally deemed it wise to do so, however, and there 
can be no question of his power in that respect, even without ex- 
press authority. The statute mentioned may be said to confer the 
authority by implication, and, indeed seems to expect from the Presit 
dent that action. 

100 The joint resolution authorizing the President to use the 
armed forces in compelling Spain's withdrawal from Cuba was passed 
April 20, hostile measures were tsken at once, and the formal de- 
claration, passed ^Dril 25, declared the war to have existed since 
the 21st. 



II. MILITARY POWERS IN TIKE OF WAR. 



107. 



Chapter VI. 

Power to Raise end Organize the Armed Forces. 

It has come to be an axiom in public law that the power to 

raise and support the armed forces of a democratic state should be 

jconfided exclusively to the popular branch of the government.^ The 

Constitution of the United States accordingly gives to Congress the 

power n to raise and support armies", and "to provide and maintain a 
»2 

navy". Raising armies includes such matters as the determination of 
the number of men to be enlisted; their enlistment qualifications; 
their organization into the different arms of the service; the num- 
ber end arrangement of the various units; the number and rank of of- 
ficers; the term of service for officers and men. Providing a navy 
Includes the determination of the same class of subjects relating 
to the seamen and npval officers; the number, size, character, and 
Ljost of vessels of war, navy and dock yards, and other similar mat- 
ters. 3 

Over all these matters the power of Congress is complete 
and exclusive. The President is vested with no constitutional 
power in regard to the raising and organization of the armed forces. 
He derives none from his position before international law. Hence 
such powers as he does possess in this respect must rest wholly upon 
the euthority of custom and statute. Congress in this field is 
supreme, but Congress has from the first recognized the wisdom and 
necessity of entrusting the President with some statutory authority, 
which has at times amounted to the exercise of a considerable dis- 
cretionary power. 

1 Pomeroy, Constitutional Law ( Bennett's ed .). 382. 

2 Art. I, Sec. 8, CI. 12, 13. 
- ? P om er- o y, o p . . pit . .. flftfl . 



108 



The common method of raising armies under ordinary circum- 
stances thr.t of voluntary enlistment — has generally been exer- 
cised in peace time in accordance with detailed statutes, leaving 
to the President little or no real power. Congress is ordinarily 
careful to prescribe definitely the number of men to be enlisted, 
their enlistment qualifications, the terra of their service, and other 
details, merely authorizing the President "to accept", "to call for", 
"to call for and accept", or "to employ", within these well-defined 
limits. Occasionally the statutes have prescribed only the maximum 
number of men to be raised, giving to the President some little 
discretion in determining upon the size of the forces within that 
number. Likewise when providing for the navy, the statutes general- 
ly prescribe in detail the number and kind cf ships to be constructed, 
contracted for, or purchased, the cost and details of equipment end 
armament, and other corresponding matters, leaving to the President 
only the duty to see that the provisions of the statutes are carried 
cut . 

In times of war or emergency, however, and occasionally 

even in peace time, the President has been vested with more or less 

discretion in these matters. Thus the foundation of the army under 

4 

the Constitution had scarcely been laid, when by the Act of March 
3, 1791, which added another regiment to the regular forces, the 
President was given power, "if of opinion that it will be conducive 
to the public service", to employ "levies" (volunteers) in addition 
to the number of 2000, for six months, as a supplementary force, 

4 By the Act of Sept. 29, 1789, the array existing under the 
Confederation was "recognized to be the establishment -for the troops 
in the service of the United States"; and by the Act of Apr. 30, 
1790, the beginning was made of e permanent military establishment. 
Annals of Cone-. . 1 Cong., II, App., 2199, 2222. 



109 



obviously to be used only for emergency purposes. An act of the 
next year (March 5, 1792), passed as a result of St. Clair's defeat 
by the Indians, provided three additional regiments for the protec- 
tion of the frontier to be enlisted for three years, but gave the 
President the power "to forbear to raise, or to discharge after they 
shall be raised," the whole or any part of these forces, "in case 
events shall, in his judgment, render his so doing consistent with 
the public safety." The President was further authorized to call 
into service "for such period as he may deem requisite, such number 
of cavalry as, in his judgment, may be necessary for the protection 
of the frontiers;" and also to employ "such number of Indians as 
he may think proper ... in case he shall deem the measure ex- 
pedient." 6 

The crisis with Prance resulted also in the granting of 

considerable discretionary power to the President. The Act of May 

28, 179f , authorized the President to raise a Provisional Army of 

10,000 men, "in the event of a declaration of war against the United 

States, or of actual invasion of their territory by a foreign Power, 

or o* our imminent danger of such invasion, discovered, in his 

opinion , to exist, before the next session of Congress"; and also 

to create a sort of reserve force by accepting, "if in his opinion 

the public service shall require", volunteers liable to service at 

7 

any time within two years. Other acts during the same period like- 
wise vested the President with some discretionary power, such as to 
prescribe the enlistment qualifications for the forces provided and 

5 Annals of Cong . . 1 Cong., II, App., 2350. 

6 Ibid. . 2 Cong.. App., 1343, (Sees. 11, 13, 14). 

7 Ibid . . 5 Cong., Ill, App., 3729, (Sees. 1, 3). It was under 
authority of this act that 7/ashington was appointed Lieutenant- 
General and Commander-in-Chief of the forces to be raised for the 
expected war with France. 



110. 



to discharge the troops at his discretion. 

The Acts of February 24, 1807 and February 6, 1812, passed 

in anticipation of trouble with England, each again provided a sort 

of reserve force, of 30,000 and 50,000 men, respectively, to be 

liable for duty at any time the President might deem proper , within 

9 

two years from the date of their acceptance into the service; while 
another act passed during the war (Act of January 29, 1813) autho- 
rized the raising of such a force "as in the opinion' of the Presi- 
dent may be necessary for the public service", up to twenty addi- 
tional regiments. ^ 

During the Mexican War very little real discretionary 
authority was granted to the President in the matter of raising the 
necessary forces, although the Act of May 13, 1846, recognizing a 
state of war, empowered him to employ the militia, naval, and mili- 
tary forces, and "to call for snd accept" up to 50,000 volunteers; 
while another act o 4 * the same date authorized him to increase the 
companies in the regular amy to 100, to be reduced again to 64 
when the exigency should cease • 

The earliest acts for the raising of volunteers and for 
the increase of the regular army during the Civil War were similar 
in character, the President being authorized to accept volunteers, 
"in such numbers as the exigencies of the public service may, in 
his opinion , demend", up to 500,000 for three years or the duration 
of the war; and to increase the regular army by 11 regiments, such 
increase to be only for the period of the emergency. The Act of 



8 Acts of July 1£, 1798 and Mar. 2, 1799. Annals of Cong .. 
5 Cong., Ill, App., 3785, 3933. 

9 Ibid . , 9 Cong., 2 Sess., App ., 1259 ; ibid ., 12 Cong. , II , App, 222 

10 Ibid., 12 Cong., 2 Sess., App., 1322-1325. 

11 9 Stat, at L . . 9, 11. 

12 Acts of July 22, July 25, & July 29,1661.12 Stat. at L. .268.27< 
-.. 2JZ5 



111. 



July 17, 1862, however, vested the President with somewhat larger 

powers, in that, besides authorizing him to accept an additional 

100,000 volunteers "for nine months, it empowered him to accept 

volunteers as replacements, "in such numbers as may be presented 

for that purpose"; and also to employ persons of African descent, 

without limit as to number, for any labor, or military or naval 

service, for which they might be found competent. 13 Considerable 

power was also given with regard to increasing the navy by an act 

which authorized the Secretary of the Havy to hire, purchase, or 

14 

contract for such vessels "as may be necessary". 

The most sweeping grant of power with regard to the raisin 
of forces by voluntary enlistment came during the Spanish-American 
War, when no limit was placed on the numbers the President might cal 
for in that way. Both the Joint Resolution of April 20, presenting 
the ultimatum to Spain, and the Act of April 25, formally declaring 
war, empowered the President, in identical language, "to use the 
entire land and nrv8l forces the United States, and to cal}. into 
th«= actual service of the United States the militia of the several 
States, tj) such extent as may be necessary to carry these resolution^; 
(and this Act) into effect." 15 The Act of April 22, 1898, authoriz- 
ing the Volunteer Army, apparently contemplated some legal limit, 
as it provided that when necessary to raise a volunteer army, "the 

President shall issue his proclamation Etating the number of men 

16 

desired, within such limits as may be fixed by law ." With the 

17 

exception of provisions regarding special organizations, no limit 



13 12 Stat, at L. , 597 (Sees. 3, 4, 12). 

14 Act of July 24, 1861. Ibid . . 272. 

15 30 Stat, at L , 364, 738. 

16 Ibid ., 361 (Sec. 5). 

17 Ibid., (Sec. 6); see also Act o^ May 11, 1898. Ibid . . 405. 



US. 



to the number of troops to be raised wes ever made. Under the pro- 
visions of this act, President McXinley issued two proclamations, 
one on April 23, calling for 125,000 volunteers, and the other on 
May 25, calling for 75, 000. 18 

During the recent war with Germany, the principle of rais- 
ing troops by voluntary enlistment was almost entirely abandoned, 
although the President was at the beginning of the war empowered 
in that way to raise the increments of the Regular Army provided 
for by the National Defense Act of 1916, to recruit all Regular 

Army oganizations to their maximum strength, and to raise and main- 

19 

tain at his discretion four infantry divisions. 

Though considerable power has thus on many occasions been 
granted to the President to raise forces by the process of volun- 
tary enlistment, the adoption of conscription has carried with it 
a still larger grant of power and a wider range of discretion. 
There is no longer any doubt as to the constitutional right of Con- 
gress to provide for the raising of armed forces by conscription 

20 

as well as by voluntary enlistment, and this method has been used, 



18 Richardson. Messages and Papers of the Presidents . X, 203- 
204, 205-206. 

19 Selective Service Act of Kay 18, 1917. The authorisation 
of the volunteer infantry divisions wes in response to the offer of 
e^-President Roosevelt to raise this number of troops from the coun- 
try at large. President Wilson declined to exercise the authority 
granted him under this provision. 

20 Arver v. U. S .. 245 U. S., 366 (1918), in Wigmore , Source - 
Book of Military Law ana "ar-Time Legislation . 617-626. The general 
understanding that the Constitution contemplated and permitted con- 
scription was indicated by the following amendment proposed b; the 
Rhode Island ratifying convention. May 29, 1790: "That no person 
shall be compelled to do military duty otherwise than by voluntary 
enlistment, except in cases of general invasion; anything in the 
second paragraph of the sixth article of the Constitution, or any 
law made under the Constitution, to the contrary notwithstanding." 
Elliot's Debates . I, 336. The arguments for and against conscript iofli 
are well summed up in Pomeroy, Constitutional Law . 391-392. 



113. 



less commonly than the other, hut on occasions of greater emergency. 

Conscription was recommended hy Congress, and used to 

21 

some extent by the states during the Revolution, and was first 
proposed under the Constitution in 1814. Other methods having 
failed to bring forth the required number of troops, Secretary of 

War Monroe, in a report submitted October 17, suggested to Congress 

22 

several alternative plans of raising men by draft. Some sort of 

conscription measure would undoubtedly have been adopted, had not 

its necessity been obviated by the termination of the war. 

The Enrollment Act of March 3, 1663, is notable as being 

the first instance of resort to conscription in the United States 

under the Constitution. This act constituted all able-bodied male 

citizens and declarants between the ages of 20 and 45 into the 

"national forces", made certain classifications, divided the country 

into enrollment districts, and empowered the President to assign 

to each district the quota of men to be furnished and to call forth 

23 

these "national forces" by drrft. Amendments added in 1864 made 

it clear that the President's power to cell for men by this means 

was to be practically unlimited, he being authorized, "whenever he 

shall deem it necessary, during the present war, to call for such 

number of men for the military service of the United States as the 

public exigencies may require"; and further, at his discretion , 

to cell for volunteers for one, two, or three years, deficiencies 

24 

in quotas to be filled by draft. 

Under the provisions of these acts, President Lincoln 
issued five separate calls for men — by proclamation of October 17, 



21 Upton, Military Policy o* the United States . 27-26. 29. 35-36. 

22 Am. State Papers , "11. Affairs . I, 514-517. 

23 12 Stat, at L . . 731. 

24 Acts of Feb. 24 and July 24, 1664. 13 Stat .at L. .6.390. 



114 



1863, a call for 300,000 volunteers for three years or the war, 
to serve as replacements for those whose term of service expired 
during the year, and any deficiencies in the quotas of any state to 
be made up by draft on January 5, 1864; by executive order of 
February 1, 1864, a draft for 500,000 for three years or the war, 
with deductions for men furnished under the call of October 17, and 
therefore in reality a call for only 200,000; by executive order of 
March 14, 1864, an additional draft for 200,000 to supply a force 
for the Navy and an adequate reserve; by proclamation of July 18, 

1864, a call for 500,000 volunteers, deficiencies to be filled by 

draft on September 5; and by proclamation of December 19, 1864, 

a call for 300,000 volunteers for one, two, or three years, to sup- 

25 

ply deficiencies and to provide for casualties. 

The Spanish Tar was fought principally with volunteers, 
but it haB already been noted that the President was given practi- 
oally unlimited pover with respect to the raising of those. ° The 
threatening situation that had been developed by the great European 
War led, however, to the passage in 1916 of the so-called National 
Defense Act, 27 into which was incorporated to a certain extent the 
principle of conscription, in that the President was empowered, 
among other things, to draft the National Guard and the National 
Guard Reserve created by that act, into the federal service, when- 
ever Congress should authorize the use of armed forces for any 
purpose requiring troops in excess of the Regular Army. 

This act increased considerably the President's powers to 

25 Richardson, Messages and Papers of the President . VI, 169, 
226-227, 232, 235, 271-272. 

26 Supra . , 111. 

27 Public No. 85, 64 Cong., in Wigmore , Source-Book of Mili - 
tary Law and War-Time Legislation , 384-444. 



use the militia forces at his discretion, since the troops so 
"federalized" were by that action automatically discharged from 
the militia and taken over bodily into the national forces, end 
might therefore be used, not merely a_s militia , but for any purpose 
for which the regular military end naval forces might be used. 2 ® 
Under the provisions of this act, the National Guard was "federa- 
lized" and drafted by the President into the service of the United 

St8tes during the Mexican border troubles of 1916, and at the be- 

29 

ginning of the war with Germany in 1917. 

Finally, the principle of conscription v;as adopted in the 

30 

Selective Service Act of May 18, 1917, as the one means for rais* 
ing the immense number of men required in the war with Germany, and 
the President was vested with wide powers in connection therewith. 
He was authorized to draft into the service of the United States the 
various Rational Guard organizations, in accordance with the natio- 
nal Defense Act of 1916; to raise immediately by draft 500,000 men 
in addition to the Regular ^rmy and the National Guard; to raise 
and begin training, "in his discretion and at such time as he may 
determine", an additional 500,000; and to raise by draft such ad- 
ditional units "as he may deem necessary" for the maintenance of 
the above forces at the maximum strength. 

Though an army of nearly 2,000,000 men was thus provided 



28 It was under the provision of this act that the President 
was enabled to send the National Guard organizations overseas dur- 
ing the recent war, practically intact, and thus add in short order 
an immense number of already organized and at least partly trained 
men to the fighting forces. 

29 N. Y. Times Current Hist. Mag. , IV f 617; see proclamation 
of July 3, 1917, U. S. Stats ., 65 Cong., 1 Sess., Procs., 37. 

30 Public No. 12, 65 Cong. , in Wigmore, op. cit .. 460-468. 
This act was amended at various times — Apr. 20 , Ma^ 16, Msy 20, & 
Auff. 31, 1918. Ibid., 469-474. 



116. 



for, President Wilson wan not satisfied with the powers granted and 

on May 2, 1918, through Secretary Baker, he requested Congress to 

remove all limit on the numher of men that might he drafted for 

military service and to give him authority to summon as many as he 

31 

might find necessary. Congress acceded to this request, and in 

32 

the Array Appropriations Act o^ July 9, 1918, extended the autho- 
rity of the President n so as to authorize him during each fiscal 
year to raise by draft . . . the maximum numher of men which may be 
organized, equipped, trained, and used during each year for the 
prosecution of the present war until the same shall have been 
brought to a successful conclusion." 

The President has thus from the very earliest period of 
our national history exercised a considerable power in connection 
with the raising of armed forces, 8 power that has been increased 
with the needs of the emergency, but a power b-sed generally on 
definite statutory authority. It is beyond dispute that without 
such authority the President has no right to raise armies or provide 
for the navy. Nevertheless, there have been occasions when such 
power has been exercised without any legal sanction. Thus, during 
the Seminole War of 1818, the military commanders (Generals Gaines 
and Jackson) took the responsibility of raising and organizing a 
force of volunteers and Indians without statutory authority, and of 
formally mustering them into the service of the United States. 
General Jackson, on taking command, had been ordered by the V/sr De- 
partment to call on the Executives of adjoining states for such ad- 
ditional militia as might be required for the termination of the 
war, but instead he levied an army from the people of Tennessee and 

31 H. Y. Times , May 3, 1918. 

3E Public No. 193, 65 Con?., in Wigmore, op. cit .. 587,600. 



Kentucky by private circular letters, accepted the services of two 
regiments of volunteers as well as a considerable body of friendly 
Indians, organized and officered them on his own authority, and 
placed at their disposition United States funds under his control. 
Altogether he was reported to have raised an army of about 2500 men, 
appointed 230 officers, end established rank from an Indian briga- 
dier-general down to the lowest subaltern of a company. 33 

Jackson's action was vigorously condemned in reports by 

both Senate and House committees, as a violation of the Constitution 

34 

and a danperous infringement on the powers of Congress. Jackson 
defended his action with equal vigor, claiming that he had been in 
effect charged with the management of the war and vested with the 
powers necessary to carry it to a "speedy and successful" termina- 
tion; thft the call for volunteers was absolutely necessary to 
avoid delay and disaster; and that "every measure touching the 
raising and organizing this volunteer corps was regularly communi- 
cated to the Secretary of T7ar, and received his unqualified appro- 
35 

bation". The records appear to sustain Jackson's contention. 
Secretary of r . r ar Calhoun, in reply to Jackson's announcement of 
whet he had done, expressed to him the "entire approbation of the 
President of all the measures which you have adopted to terminate 
the rupture with the Indians." 3 ^ Responsibility for the violation 
of the Constitution must therefore rest finally in this instance 
with the Executive. 

In 1845 occurred another instance of this exercise of 

33 ^State Papers . Mil. Affairs , I, 740; II, 99-100. 

34 See report of the Senate committee, Feb. 24, 1819; of the 
House committee, Feb. 28, 1820. Ibid . . I, 739-741; II, 101. 

35 Ibid ., I, 755, 758. 

36 See letters of Jackson to Calhoun, Jan. 12 & Jan. 20, 1818; 
and of Celhoun to Jackson, Jan. 29 & Feb. 6, 1818. Ibid. , I, 696-697 , 



118 



power without statutory authority. Anticipating war with Mexico, 
the Adjutant General, by direction of the Secretary of War, wrote 
General Taylor on August 6, directing him to learn from the authori- 
ties of Texas whet additional forces could, in case of need, be 
pieced at his disposal, and giving him authority to call them into 
eervice. "Such auxiliary volunteer force from Texas, when events, 
not now revealed, may justify their employment, will be organized 
end mustered under your orders , and be received into the service 

of the United States when actually required in the field to repel 

« 37 

invasion, actual or menaced, end not before. This order to Taylor 
was entirely without authority of statute, though it was expected 
that provision would be made to cover the case. 

President Lincoln, immediately after the outbreak of the 
Civil War, took it upon himself to raise a great army without await- 
ing the sanction of Congress. By proclamation of May 3, 1861, 
based on no authority except the "existing exigencies" and his own 
position "as President and Commander-in-Chief", he ordered the in- 
crease of the Regular Army by 22,714 officers and men and of the 
Havy b^ 18, COO seamen, and in addition called for 42,034 volunteers 

to serve for three years -- an aggregate increase in the armed 

38 

forces of 82,748 officers and men. By the time of the special 
session of Congress, beginning Jul^ 4, the response to these calls 
had brought forth a total of 220,000 men acoepted for service -- 
besides 80,000 militia for three months -- without any constitutional 
or statutory authority . 39 The President further, without authority 

37 House Ex. Doc. No. 60, 30 Cong., 1 Sess., 83,84, quoted in 
Upton, Military Policy o^ the United Stetes . 195-196. 

38 Riche'rdBon. op. cit ., VI, 15-16. See also Lincoln's execu- 
tive order of May 7, 1861. Ibid . , 18-19. 

39 Upton, Military Policy o^ the United States. 230. 



119. 



of lew, ordered a total o^ 19 vessels edded to the Navy, end direct- 
ed the Secretary of the Treesury to advance, without security, 
fE, 000, 000 to private individuals, to he used in meeting requisitions 
made necessary by these military and naval measures. 4 ^ 

Rhodes characterized these acts of the President as "clear- 
ly beyond the President's authority" 41 and Upton says of them that 
"No usurpation could have been more complete." 42 The President him- 
self recognized end admitted that he had acted beyond his constitu- 
tional or statutory powers, but justified himself on the grounds 
of necessity, saying to Congress in his message of July 4, 1861: 
n The8^ measures, whether strictly legal or not, were ventured upon 
under what appeared to be a popular demand end a public necessity, 
trusting then, as now, that Congress would readily ratify them. 

It is believed that nothing has been done beyond the const itu- 

43 

tional competency of Congress." To this Congress responded by 

the Act of August 6, 1861, legalizing all the acts, proclamations, 

and orders of the President after March 4, 1861, respecting the 

Army and Navy and calling out militia end volunteers, "as if they 

had been issued and done under the previous and express authority 

44 

end direction of the Congress of the United States." 

It is not within the scope of this study to speculate 
upon the question whether, in these instances of unauthorized exer- 
cise of power, the President was justified by the necessities in 
each case. It is sufficient to note that, when he considers the 
emergency serious enough, the President has acted, end presumably 

40 Richardson, op. eit .. VI, 78. The individuels wer<= John A. 
Dix, George Opdyke, and Richard H. Blatchford. 

41 History of the United Stales , III, 395. 

42 Military Policy of the United States . £29. 

43 Richardson, ov. cit .,VI^ 24. See also Lincoln's statement 
in his message of May Jib, 1862. Ibid . , 78. 

44 1 2 Stat . _at_T L5 _,_ 3 P, fi_jgp g^3 ) - 



120. 



will again act, ss lie thinks the situation demands, and trust to 
Congress to grant him the proper legal sanction afterwards. If 
these steps appear necessary to save the government, as they were 
said hy Lincoln to he necessary in 1861, popular opinion will un- 
doubtedly sustain the President, as it did then. 

In the matter of the organization of the armed forces, 
the statutes have generally been careful to provide the details, 
but the President has frequently been granted considerable power 
in this respect also, especially in time of war or public emergency. 
The Act of March 3, 1791, authorizing the President to employ 

emergency "levies" at his discretion, empowered him also "to organizo 

45 

the said levies", apparently as he should see fit; while the Act 
of March 5, 1792, prescribed in detail the organization of the en- 
larged army, but with the distinct proviso, "That it shall be law- 
ful for the President of the United States to organize the five 
regiments of infantry and the said corps of horse and artillery 
as he shall judge expedient . diminishing the number of corps, or 
taking from one corps and adding to another, as shall appear to 
him proper." 4 ** 

Under the authority of this act. President Washington, 
on Decmeber 27, 1792, announced to Congress that the Legionary plan 
of organization had been adopted for the troops, the whole force of 
about 5,000 men being given the name of the Legion of the United 
States, and divided into four Sub-Legions, each with its staff and 
more detailed division into dragoons, artillery, infantry, and rifle- 

47 

men. The plan so adopted continued under executive authority un- 

45 Annals of Cong . , 1 Cong., II, App. 2350 (Sec. 9). 

46 Ibid., 2 Cong., App., 1543 (Sec. 2). 

47 Am. State Papers . Ivlil. Affairs. I, 40-41. 

" ! 



121. 



til 1795, when it was given definite statutory recognition, the Sub- 
Legions still to be organized, however, "in such manner as the Pre- 

4-fi 

sident of the United States shall direct." 

The Provisional Army provided for the expected war with 
Prance was to be organized by the President into corps of artillery, 
cevalry, and infantry, "as the exigencies of the service may re- 
quire"; 49 the largest portion of the troops provided in view of the 
threatening relations with England was to be organized by him into 
battalions, squadrons, regiments, brigades, and divisions, as ex- 
pedient;^^ while the forces raised particularly for the protection 
of the frontier were to be armed, equipped, and organized "in such 
manner ... as the nature of the service, in his opinion, may make 
necessary. "^ 

The organization of the forces raised for the prosecution 
of the Mexican War wat prescribed in considerable det&il in the 
statutes, leaving to the President very little discretionary autho- 
rity. The same was true of those authorized during the Civil War, 

except that the Act of July 17, 1862, empowered the President to 

52 

establish and organize army corps according to his discretion. 
The organization of the forces raised by the proclamation of May 3, 
1861, was, however, undertaken by the President without authority , 
as was the actual levying, end it was done in a most extraordinary 
manner, in that it was entrusted by the President to the Secretary 



48 Act of Mar. 3, 1795. Annals of Cong ., 3 Cong., App., 1515, 
(Sec. 3). 

49 Act of Key 26, 17*8. Ibid., 5 Cong., Ill, App. 2729, 
(Sec. 2). 

50 Acts of Feb. 24, 1807 & Feb. 6, 1812. Annals of Cong ., 9 
Cong., 2 Sess., App., 1259 (Sec. 3); 12 Cong., II, App., 2235 (Sec. 
3) . , 

51 Act of Jan. 2, 1812. Ibid ., 12 Cone., II, App., 2228 (Sec.l 

52 12 Stat, at L . , 597 (Sec. 9). For en example of how Presi- 
dent Lincoln organized the Army of the Potomac under this provision 
see his General War Order No. 2, Mar .1,1862. Works of Abraham Lincolfj i 
(y oflo rnl e d . K Y t 4A3-4£4^_ 



122. 



of the Treasury instead of to the Secretary of War. 53 Secretary 

Chase was to be assissted by a board of three army officers (Colonel 

Thomas, the Adjutant General, Major McDowell, the Assistant Adjutant 

General, and Captain Franklin, of the Topographical Engineers), 

who were free to make propositions, although their acceptance or 

rejection rested wholly with the Secretary of the Treasury. The 

scheme of organization agreed upon by this board and accepted by 

Secretary Chase was adopted by the War Department and published to 

54 

the army in General Orders, later being incorporated by Congress 
55 

into statute. 

For the Spanish War, the Act of April 22, 1898, although 
prescribing rather fully the organization of the volunteers into 
brigades and divisions, again authorized the President to organize 
the army corps . ^6 In the National Defense Act of 1916, the organi- 
zation was likewise carefully prescribed up to and including bri- 
gades 8nd divisions, but the President was empowered, "in time of 
actual or threatened hostilities, or when in his opinion the in- 
terests of the public service demand it", to organize the forces 
into "such army corps or armies as may be necessary", with the 
further provision that "nothing herein contained . . • shall prevent 
the President from increasing or decreasing the number of organiza- 
tions prescribed for the typical brigades, divisions, and army corps 



53 "The Secretary of War is the regular constitutional organ 
of the President for the administration of the military establish- 
ment o* the nation." U. S. v. Eliason . 16 Pet., 291, 302 (1842). 

54 NOB. 15 & 16, May 4, 1861. See also Special Order Ho. 218, 
A. G. 0., Sept. 2, 1862, by which President Lincoln ordered all the 
clerks and employees of the departments in Washington to be organize]! 
into companies and supplied with arms and ammunition, "for the de- 
fense o" the capital." Richardson, op. cit .. VI, 122. 

55 See Upton, Military Policy o 4 * the United States . 233-235; 
Acts of July 22, 25 & 29, 1661. 12 Stat, at L. . 268. 274. 279. 

56 30 Stat, at I.. 362 (Sec. 9T* 



123. 



or from prescribing new end different organizations and personnel 

as the efficiency of the service may require."^ 7 

This blanket authority was continued in almost identical 

58 

language in the Selective Service Act of 1917, and made it pos- 
sible for the President, upon the advice of the General Staff, to 
so adjust the organization of the army and to add such new units 
as the character of the war showed to be necessary. It was under 
this authority, for example, that all distinctive appellations as 
Regular Array, Rational Guard, and National Army, were discontinued, 
and all the land forces merged into one United States Army." It 

was likewise under this authority that such an organization as the 

60 

Students' Army Training Corps was added to the military forces; 
that new services were added, such as the Motor Transport Corps, 
Chemical Warfare Service, Air Service, and Tank Corps; and thet the 
new plan of organization for the army, as recently announced by 
General March, wes put into effect without any further action on 
the part of Congress. 



57 Sec. 3, Wigmore, op. cit .. 365. 

58 S e c. 1, Ibid . , 461. 

59 See Summary of Annual Report of Adjutant General of the 
Army, in Official U. S. Bulletin . Jan. 8, 1919. The Selective Ser- 
vice Act provided that the Nrtionel Guard organizations drafted into 
the federal service should retain their State designations, "as far 
as practicable." 

60 See Official U. S. Bulletin . Oct. 1, 1918. 

61 Ibid .. Mar. 29. 1919. The new Navy reorganization — that 
of maintaining two separate major fleets instead of only one -- wes 
likewise announced as going into effect Jurje 30, 1919. N. Y. Times 
Current Hist. Mag. . I, £53 (Aug. 1919). 



1E4. 



Chapter VII. 
P owe is of Command . 

The Constitution makes the President the commander-in- 
chief of the army and navy of the United St8tes and o^ the state 
militia when called into the actual service of the United States. 1 
Under this provision the President is vested with a function than 

which, according to an eminent authority, there is none "more signi- 

2 

ficant as indicating his independent and exalted position." 

Strangely enough, in spite of this extraordinary grant of 
power, this clause of the Constitution appears to have aroused very 
little discussion and scprcely any serious opposition in the Con- 
vention of 1787. Some objections were evidently made, hut rather 
to the idea of the President's assuming active command in the field 
than to his exercise of the general powers of command. The mem- 
bers of the Convention probably had not forgotten the trouble and 
embarrassment caused during the ^evolution by Congressional inter- 
ference and th<» lack of a centralized control over the army. They 
were very likely influenced also by the precedents in the practice 
of European states, in former plans of union for the colonies, and 
in the recently established state constitutions. As students of 
political theory they were also undoubtedly impressed with the 
notion that the inherent nature of the executive office made it the 

1 Art. II, Sec. 2, CI. 1. 

2 McClein, Constitutional Law in the United States . 210. 

3 See Luther Martin's letter to the Maryland legislature. 
Elliott's rebates . I, 378; Farrand's Records . Ill, 217-218. 



125. 



proper repository for the chief command of the military and naval 
forces. 

There was more discussion and more opposition in the state 
ratifying conventions. Thus Mr. Miller, in the North Carolina con- 
vention, expressed himself as fearful that the influence of the 
President, particularly over the military, would be too great, that 
he v:88 given extensive powers too easily liable of abuse. "He con- 
sidered it as a defect in the Constitution, that it was not ex- 
pressly provided that Congress should have the direction of the 
motions of the ermy."^ On the whole, however, the propriety of 
such a power in the President, so far as to give orders and exer- 
cise a general supervision over military and navel movements, was 
not seriously questioned even in the stc+e conventions, the opposi- 
tion again being largely to the possibility of the President's as- 

g 

sumption of personal command of the forces. 

The general feeling throughout the country was undoubted- 
ly expressed by Hamilton when he wrote: "The propriety of this pro- 
vision is so evident in itself, and so consonant to the precedents 
of the State constitutions in general, that little need be said to 
explain or enforce it. Even those of them which have, in other 
respects, coupled the chief magistrate with a council, have for the 
most part concentrated the military authority in him alone. Of all 



4 This idea was stressed quite recently by Senator Bacon as 
follows: "I want to give my idea 8s to why the constitution vests 
in the President the office of commander in chief. The President is 
an Executive. Upon him devolves the execution of the law and the 
enforcement of the law; and the enforcement of the lew must neces- 
sarily be, in its last analysis, through the military arm. Of cours 
the President can not be the Supreme Executive unless he has the 
supreme command of th8t through which the execution of the law must 
be enforced." Cong. Record , XLITI, Pt. 3, (60 Cong., 2 Sess. ), 2542-2^43, 

5 Elliot's Debates . IV, 114. 

6 Story. Commentaries on the Constitution , II, 315; cf . remark^ 
of Patrick Henry! Elliot's Debates , III, 58-60. 



126. 



the cares or concerns of government, the direction of war most 
peculiarly demands those qualities which distinguish the exercise 
of power by a single hand. The direction of war implies the direc- 
tion of the common strength; and the power of directing and employ- 
ing the common strength forms a usual and essential part in the 

7 

definition of executive authority." 

Although there has been some contention that Congress, by 
virtue of its power to declare war and to provide for the support 
of the armed forces, is a superior body, and that the President, 
as commander-in-chief, is "but the Executive arm, • • in every de- 
tail and particular, subject to the commands of the lawmaking 
power,"® practically all authorities agree that the President, as 
commander-in-chief, occupies an entirely independent position, hav- 
ing powers that are exclusively his, subject to no restriction or 

9 

control by either the legislative or judicial departments. 

The line of demarcation between the war powers of the 
President and those of Congress is not clearly drawn in the Consti- 
tution,"^ nor are the President's powers as Commander-in-Chief 
specifically described or defined by that instrument. Hence authori 
ties in general hold that the President as commander-in-chief may 



7 The Federalist , No. 73 ( 74 ) , (Goldwin Smith ed., p. 409); cf. 
alBO reply of Mr. Spaight to Mr. Miller. Elliot's Debates . IV. 114-115 

8 Senator Bacon in U. S. Senate, Feb. 6, 1906. Cong. Record . 
XL, Pt. 3, (59 Cong., 1 Sess.), 2135. On a later occasion. Senator 
Spooner replied very aptly to a similar suggestion, that such a 
construction would mean that "the Constitution diu not constitute 
the President Commander-in-Chief of the Army and Navy, but constitu- 
ted him the Adjutant-General of the Congress." Cong. Record , XLI, Pt 
2 (59 Cong., 2 Sess.), 1131. 

9 Pomeroy, Constitutional Lav, ( Bennett ' s ed , ) . 71; Davis, 
Treatise on the Military Lew o J the United States . 323; Mississippi 
v. Johnson , 4 Wall., 475, 497 (1869); Ogg & Beard, National Govern - 
ments and the World War . 100-101; Secretary Seward in letter to Lord 
Lyons, 1861, quoted in V, at son. On the Constitution, II, 917; J. W. 
Garner, in Rev, de Droit Pub, et de la Sci. Pol .. XXXV. 10. 

10 It was attempted by the Supreme Court in Ex parte Milligan . 
4 Wall., 2, 139 (1866); see supra , 11. 



127 



const itutionally do what any military commander may do in accordance 
with the usual practice of carrying on war among civilized nations; 
that he must be guided in the exercise of such powers wholly by his 
own judgment and discretion, subject to his general responsibility 
under the Constitution. 11 According to the Supreme Court, the ex- 
tent of these powers must be determined "by their nature and by 
the principles of our institutions." 1 ^ For a closer definition we 
must therefore look to the law and usage of the military service, 

to international law and custom, and to the general practice under 

12 

the Constitution and statutes o^the United States. 

Prom these sources we find that the first great power of 
the President as commander-in-chief of the armed forces in time of 
W8r is the gene ral direct ion of the military and naval operat ions . 
It is the President who wages war. Congress declares war and pro- 
vides the means *or carrying it on, but the President decides how 

the war is to be conducted and directs the campaigns. This is "a 

14 

despotic power", eays Burgess, but nevertheless must be confided 
by e sound political science to the President. "The President must 
have despotic power when he wages war. The safety, the life per- 
haps, of the state requires it." Other authorities also hold that 
in the field 0* military operations there are no limitations pre- 
scribed by the Constitution and the President's power is therefore 
exclusive. Thus Lieber says that the direction of military movemenl 
"belongs to command, and neither the power of Congress to raise and 
support armies, nor the power to make rulf-s for the government and 

11 Finley & Sanderson, The American Executive and Executive 
Methods . 267; Whiting, gar Po-ers under the Constitution , 82-85T 

12 Ex parte Killigan , 4 Wall., 2, 139-140 (1666). 

13 Cf. J. V/. Garner, in Rev, de Droit Pub, et de la Sci. Pol . , 
HIV, 13 (Jan-Mar., 1918). 

14 Political Science and Comparative Constitutional Law, II. 26:.. 



128. 



regulation of the lend and naval forces, nor the power to declare 
war, gives it the command o^ the army. Here the const itut ional 
power o^ the President as commander- in-chief is exclusive *" 15 

It is an interesting question whether the President, undei 
this exclusive power, may assume active, personal command of the 
army and navy, in time of war. Authorities do not ell agree on this 
point. Some claim that the President is essentially a civil of- 
ficer and that it is not intended that he shall take active commend 
in time of hostilities;^ others sey outright that the President 
"has all the powers of personal command" ; x while still others ex- 
press themselves as doubtful. Thus Watson thinks it by no meens 
certain that the President has such power, since if he should under- 
take to command the military and naval forces in time of war, he 
would necessarily he prevented from executing other important duties! 
required of him by the Constitution. Watson admits, however, that 
if the President insisted on assuming personal command of the forces 
it would be difficult and probably impossible to restrain him.^8 

While the expediency of such set ion on the pert of the 
President may be doubted, t^ere does not seem to be any ground for 
questioning his power. The matter was specifically raised, dis- 
cussed and determined in the Constitutional Convention of 1787. 
Thus the New Jersey plan presented by Mr. Peterson on June 15 
authorized the Executive to direct all military operations, "pro- 
vided that none of the persons composing the federal Executive sh8ll 

15 Lieber, Remarks on Arm;) Regulations , 18; see also Watson, 
On the Constitution . II, 912-914; Von Hoist, Constitutional Law 
of the United States , 194. 

Vo llcClain. Constitutional Law . 210. 

17 Finley & Sanderson, op. cit ., 267. 

18 Watson, On the Constitution , II, 919; cf. Miller, On the 
Constitutio n. 163: Von Hoist. Constitutional Law o p the Uni^elP 
States . 1977 



129 



on any occasion take command of any troops, so as personally to 

conduct any enterprise as General or in any other capacity. "19 

Hamilton's plan likewise vested the chief command and direction of 

war in the Executive, but with the proviso that "he s r all not take 

the actual command, in the field, of an army, without the consent of 

20 

the Senate 8nd Assembly." 

The action of the Convention in refusing to adopt any of 
2i 

these specific proposals, and the further attempts in the state 

ratifying conventions to secure amendments expressly forbidding 

22 

such exercise o^ command by the President, certainly make it 
clear that the framers of the Constitution understood and intended 
that the President should have th8t right. Hamilton but reflected 
the general interpretation of the Constitution when he referred to 
the President in this connection as the "first general and admiral 
of the Confederacy". 23 

While there is therfore no doubt as to the constitutional 



19 Elliot's Debates . I, 176. 

20 Ibid .. V. 587. 

21 See Luther Martin's letter to the Maryland legislature: 
"Objections were made to that part of the article, by which the 
President is appointed Commander-in-Chief o 4 * the army and navy of 
the United States, and of the militia of the several States, and 
it was wished to be so far restra ined . that he should not command 
in person ; but this could not be obtained." Ibid . . I, 378; Far - 
rand 's Records . Ill, 217-218. 

2~2" Thus the New York convention -proposed an amendment, "That 
the President or person exercising his powers for the time being, 
shall not command an array in the field in person, without the 
previous desire of Congress;" while in the Maryland convention a 
similar amendment was submitted, but negatived in committee and 
never reported. Elliot's rebates . I, 330; II, 553. In the 1st 
Congress Mr. Tucker (S. C.) proposed an amendment striking out the 
words "be Commander-in-Chief" from the article defining the Pre- 
sident's powers and substituting the phrase "have power to direct 
(agreeably to law) the operations." This was probfbly in line with 
the New York amendment; but on a vote to refer to the Committee of 
the Whole, it was negatived. Annals of Cong . , 1 Conp., I, 762,763. 

23 The Federalist . No. 68, ( Goldwin Smith ed., p. 381). 



130. 



right of the President to assume personal command o* the armed 
forces et his discretion, the sound construction of the constitu- 
tional provision is that no such action on his part wes contem- 
plated unless in an extraordinary emergency; that the power of per- 
sonal command was vested in the President principally for the pur- 
pose of giving him that control over military and naval operations 

which is a necessary attribute o^ the executive hranch of the 
24 

government . 

No President has yet seen fit to exercise his right to 
take personal command of the forces in time of war, although Wash- 
ington on one occasion during his administration did actually take 

the field in command of militia forces called out to suppress an 
25 

insurrection. President Polk also took a keen personal interest 

in the military movements of the Mexican War, and at one time, in 

order to carry his point against a refractory Adjutant-General, 

insieted on his right as Commander-in-Chief to have his instructions 

26 

regarded as a military order to be promptly obeyed. President Lin- 
coln, while nevr exercising actual personal command, frequently 
visited his generals in the field, advised with them, drew up plans 
of campaign, end issued among others his famous General War Order 
No. 1 (January 27, 1862), and Special TYar Order No. 1 ( Janur ry 31, 
1862), the -"ormer ordering a general movement of the land and naval 
forces to be begun sgainst the insurgents on February £2, the lat- 



24 Cf. opinion of Secretary of W8r Monroe, given to a com- 
mittee of Congress, Feb. 11, 1815. Am. State Papers . Mil. Affairs , 
I, 606; see also Story, Commentaries on the Constitution . TT~, 315 ; 
Elliot's Debates , IT, 366. 

25 Infra"T ~149. 

26 Pier;/ of James K. Polk , III, 31. 



131. 



ter ordering an expedition ageinst Manassas Junction.^ 7 

Presidents McKin]ey and Wilson seem to have left the active 

direction of military movements entirely to the military end naval 

commanders, although with the modern means of communication the 

President might, much rnor= easily then before, assume active charge 

28 

of military and neval operations. Modern war has, however, also 
added such e heavy burden of civil duties upon the President es to 
make it practically impossible for him to devote any time to the 
purely military side, em] it is not likely that eny President will 
ever in the future attempt to exercise his right of personal com- 
mend. 

As a necessary part of his power to direct the military 
and naval operations, the President in time of war has entire con - 
trol of the movements of the army end ne vy . Congress has, under 

the Constitution, the sole power to raise end support armies and to 

29 

provide and maintain a navy; but after the forces have been pro- 
vided and var has ben begun, the President may order them anywhere 
he will for the purpose of carrying on the war to a successful con- 
clusion. 

An eminent euthority thinks that Congress could probably 
by law forbid the troops being sent out of the jurisdiction of the 
United States in time of peace ;^0 but in time of war the authority 
of the President is recoe-nized as being absolute as to '/here the 



27 Works of Abraham Lincoln ( Federal ed . ) ,V. 423.425; Rhodes, 
History q-p the United States . ITI. 561. But cf. Lincoln's letter to 
Gen. Grant, Apr. 30,1864: "Not expecting to see you before the sprirjj? 
campaign opens, I wish to express, in this way, my entire satisfac- 
tion with what you have done up to this time, so far 8s I understand 
it. The particulars of your plans I nc ither know nor seek to know . ' 
McPherson. History of the Rebellion . 425. 

28 See description o^ how President LIcKinley kept in touch wit* 
the military operations during the Spanish war. Beard, Readings in 
American Politics end G overnment . 316. 
Art. 1. Sec. 2, 01. 12, 13. 

30 Root. Colonial and Milit ary Policy of th e Unltftd state?' 151 



132. 



war is to "be conducted, - nether to await the onslaughts of the enemy! 
and wage a purely defensive war within the boundaries of the United 
States or to send the armed forces of the United States out of the 
country to carry on an offensive war in the enemy territory, in the 
territory of en ally, or perhaps even in the territory of a neutral. 
"The power to use an army," says a distinguished ex- Justice of the 
Supreme Court, "is co-extensive with the power to make war; and the 
army may he used wherever war is carried on, here or elsewhere. 
There is no limitation upon the authority of Congress to create an 
army and It is for the President as Commander- in-Chief to direct the 
camps igns of that army wherever he may think they should be carried 
on." 31 

As a matter of fact, there never has been any serious 
doubt as to the President's constitutional povrer to order the regu- 
lar forces wherever he may think best in the conduct of a war, 
whether within or without the limits of the United States, nor has 
any President hesitated to make use of that power in any foreign 
war in which the United States has been engaged. Regular troops 
were by order of the President sent to Canada in the War of 1812, 32 
to Mexico in 1846, to Cuba, Porto Rico, and the Philippines during 
the war with Spain, and to France, Italy, and Russia during the 



31 Charles E. Hughes, "War Powers under the Constitution", 
in Central Law Jour . . LXXXV, 206-214 (Sept. 21, 1917). See also 
Fleming v. Page , 9 How., 602, 615 (1849). 

32 The act o* Feb. 6, 1812, authorized the President to ac- 
cept 50,000 volunteers to do duty vfaeneverne deemed proper, which 
President Madison said was passed "with a view to enable the 
Executive to step at once into Canada." Writings of Jam^s Madison , 
VIII, 176. 



133 



recent war with Germany. 

Just 8S the Fresident decides when and where troops shall 
be employed in time of war, so he alone likewise determines how 
the forces shall be used, for what purposes, the manner and extent 
of their participation in campaigns, and the time of their withdrawal 
Thus the troops ordered to France during the recent war were sent 
for the general purpose of waging active war against the German 
military forces end of bringing about their defeat; were with that 
end in view instructed to cooperate with the Allies even to the ex- 
tent of being intermingled on occasion with Allied troops and 
placed under the command of superior Allied officers; and were with- 
drawn from foreign soil as rapidly as possible after that purpose 
hed been accomplished. 



33 The constitutionality of the President's action in send- 
ing troops to France was upheld by Federal Judge Speer in a case 
decided Aug. 20, 1917. See also address by er-Sen. Root at Chicago, 
Sept. 14, 1917, in The TTar . Russian and Political Addresses, 68. 

For an opposite view, see a somewhat bombastic open letter to 
the Secretary of War by Eannis Taylor, in which he says: "The un- 
authorized transportation by the executive power of cur conscripted 
National Militia to the battlefields of Europe, in defiance of 
section 8, Article I, of the Constitution, will stand out in the 
time to come as the most stupendous act of illegality in ell our 
history." Con^. Record . 65 Cong., 3 Sess. (Jan. £0, 1919), 1728- 
1729. 

A House resolution (H. J. Res. 166) was introduced July 29, 
1919, proposing an amendment to forbid Congress to conscript armies 
to serve outside the United States to execute orders of any inter- 
national body or tribunal. Ibid . , 6C Cong., 1 Sess., 3561. 

34 "The policy to be followed by our troops in any country 
is one to be determined by the Executive." Statement of Maj. Gen. 
Graves in message to his troops in Russia, quoted in The flat ion . 
CVTII, 853 (May 31, 1919). The Nation comments as follows : "TTo 
much ^or Wilsonien Realpolitlk by comparison with the old-fashioned 
theory that it is the business Congress to declare war." 



154. 



The Siberian expedition, while of course intended to aid 
in e general way in bringing- about the defeat of the Central Powers, 
had the more limited and particular purposes of saving the Czecho- 
slovak armies in Russia from destruction, and of steadying the ef- 
forts of the Russians at self-defense 8nd the establishment of law 
and order. It was not withdrawn upon the defeat of the Central 
Powers and the conclusion of the armistice, but was continued for 
some time in order "that we, with the concurrence of the great al- 
lied powers, may Veep open a necessary artery of trade and extend 
to the vast population of Siberia the economic aid essential to it 
in peace time, but indispensable under the conditions which have fol- 
lowed the prolonged and exhausting participation by Russia in the 
war against the Central Powers." To that end, Major General Graves, 
in command of the Americ-n troops in Siberia, was instructed "not 
to interfere in Russian affairs, but to support Mr. Stevens" (the 

American director of the Russian Railway Service Corps) in keeping 

35 

open the Siberian railway* In contradiction to this policy of 
continuing the American troops in Siberia, the smsll contingent sent 
to Murmansk and Archangel in Russia proper was entirely withdrawn 
by July 1, 1919. The action in every case was determined solely 
by authority of the President, acting under his power as Commander- 
in-Chief of the army and navy. 

35 See statement of President Wilson, July 22, 1919, in re- 
sponse to a Senate resolution of inquiry. Cong. Record . 66 Cong., 
1 Sess. (Sept. 3, 1919), 5075. The President's statement is also 
printed as Senate Doc. No. 607. See also statement of the Acting 
Secretary of State regarding the purposes of the Siberian expedi- 
tion. Official Bulletin . Aug. 5, 1918. Secretary of War Baker 
announced on Jan. 13, 1920, that the President had authorized the 
withdrawal of the American forces from Siberia, and that the move- 
ment o^ troops would begin at once. 

36 See statement of Gen. March, Chief of Staff, June 16, 1919. 
Hearings before the Subcommittee of the Committee on Military Affaire 
66 Cong. , 1 Sess. , 50. 



135. 



There has been considerable bitter criticism in Congress 
o p the President's Russian or Siberian policy; there has also been 
come question as to his power to send and continue troops there, 
especially since the signing of the armistice and the virtual end- 
ing of the war; and there have even been some attempts to assert 
for Congress the right to control the movements of the forces and 
to compel their withdrawal. Senator Borah (Idaho) in a recent 
speech declared the presence of American troops in Siberia an un- 
lawful usurpation of power by the President and demanded their im- 
mediate withdrawal. "We are utterly at sea," he said, "as to why 
our armed forces are carrying on war in Russia, but whatever is 
being done in thst country in the way of armed intervention is 
without authority. . . There can be no plainer usurpation of power 

than to conscript men to war against Germany and then to use them to 

37 

take care o^ internal conditions in Russia." Senator Ldge (Hew 
Jersey) introduced a resolution June 23, 1919, not only declaring 
the state of war terminated, but ordering "That all American soldier^ 
of the forces of the United States now in Europe shall be withdrawn 
from such foreign service without loss o^ time and be returned to thfo 
United States, except such soldiers of the United States Regular 
Army as have enlisted specifically for service in Europe." Sena- 
tor McCormick (Illinois) introduced a similar resolution September 
8, expressing it as the sense of the Senate "th8t no additional 



37 U. Y. Times . Sept. 6, 1919; cf. also statement of Chairman 
Porter, the House Committee on Foreign Affairs, that the drafted 
men were sent J o Siberia with "absolutely no justification in law." 
Ibid . . Aug. 24, 1919. But compare Senator Borah's remarks in the 
Senate, Feb. 16, 1909: "Congress hrs not the power to say that an 
army s^all be at a particular place 8t a particular time or shall 
maneuver in a particular distance. That belongs exclusively to the 
Commander-in-Chief of the Ar^.y ". Cong. Record . XLIII. Pt. 3. T60 
Cong., 2 Sess.), 2432". See also his speech of Nov. 4, 1919. Ibid. . 
66 Cong., 1 Sess., esp. 8465, 8466. 
38 Cong. Record, 66 C o ng., 1 



Sess., 1629. 



136 



troops be sent oversees except by the express authority of Congress, 
and "that fill troons serving in Europe and Siberia should be brought 
home with the utmost dispatch. 

Other similar resolutions have been proposed from time to 

40 

time, but only one has been adopted, that by Senator Johnson 
(California), which, however, wag merely a request for information 
as to the general policy respecting Siberia and the maintenance of 
troops there. 4 ^ It seems pretty clear, therefore, that even under 
the stress bitter partisanship and despite all its mutterinp-s 
end criticisms o^ executive policy, Congress will be slow to deny 
the power o r the President as Commander-in-Chief to send and main- 
tain troops o^ the army and navy abroad at his discretion, nr to 
assert any definite claim 0* control for itself. On the other 
hand, the Executive has not hesitated to define its policy or to 
assert its intention of adhering to and exercising its powers under 
the Constitution with respect to the movement of troops.^ 



39 Cong. Record . 66 Conp., 1 Sess., 5£84. 

40 By Senators Johnson and Poindexter, and Representatives 
Rhodes, Wood, and Mason. Ibid . , 65 Cong., 3 Sess., 3188, 3410-3417, 
3786; 66 Con/?., 1 Sess., 64, 4336, 4704, 4937. 

41 Ibid . . 66 Cong., 1 Sess., 63, 1631, 1884, 1977. 

42 President Wilson stated, in a letter to Fred McAver of 
Chicago, that the drafted troops in Siberia were being withdrawn 
as rapidly as they could be replaced by volunteers, but indicated 
that there was no intention o* withdrawing the entire expedition 
for some time. II. Y. Times, Aug. £7, 1919. Secretary Baker, in 
a statement to the House Military Affairs Committee, Sept. 15, 
1919, insisted that the American soldiers in Siberia could not be 
withdrawn because of "real military and humanitarian reasons." 
Ibid . , Sept. 16, 1919. Representative Mason (111.) on this occap.ior. 
questioned the right o* the President to send troops into a country 
with which we are not at war, but was opposed by Representative 
Kahn (Cal.), Chairman of the Committee, who cited as a precedent 
the sending of marines into Haiti. Ibid . See also statement 0* 
Gen. March, Chief of Staf^, before the Senate Subcommittee on 
Military Affairs, June 16, 1919. Hearinrs before the Subcommittee , 
50, 51. 



137. 



In connpction with his control of military end naval 
operations, the President possesses numerous other powers. In fact, 
it is generally held that, as Commander- in-Chief , he may do practi- 
cally anything calculated to weaken end destroy the fighting- power 
of the pnemy end bring the war to a successful conclusion, subject 

of course to the rules of civilized warfare prescribed by inter- 

43 

netionel law and custom. He may employ secret agents to obtain 

information concerning the position, resources, and general condi- 

44 

tion o° the enemy; he may establish a blockade o p the e nemy's 
ports, including those of insurgent states as well ae of a foreign 
enemy ; 4 ^ he may order an invasion of the enemy's country and estab- 
lish the authority of the United States over it, although he cannot 
thereby enlarge the boundaries of the United States nor extend the 

operation of our institutions and laws beyond the limits previously 

46 

assigned to them; he may even set up, on his own exclusive autho- 
rity ae Commander-in-Chief, a temporary government in conquered 
47 

territory. 

The appoint ment and dismissal of officers for the army and 
navy is another o"* the President's prerogatives as Commander-in- 
Chief, but one which is subject to some control by Congress. 4 & j n 



43 Fairlie, National Administration of the United States . 33. 

44 Totten v. U. S .. 92 U. S.. 105, 106 (1875). 

45 Prize Cases . 2 Black, 635 (1862). Ordinarily such a 
blockade is established by proclamation of the President. It may, 
however, be established without this action by the President, but 
by the commander of naval forces as an adjunct to naval operations 
Sfrainst other blockaded ports and the enemy's fleet. The Adula . 
176 U. S., 361, 306-367 (1900); President Lincoln established 
the blockade of the ports of the South by proclamet iore of Apr. 19 
& E7, 1861; President MoKinley the Cuban blockade by proclamations 
of Apr. 22 8b June 27, 1898. Richardson, Messages and Papers of the 
Presidents. VI, 14, 15; X, 20' -203, 206. 

^6* Fleming v. Page . 9 How., 603, 615 (1849). 

47 Infra. Ch. IX. 

48 Cf. Burgess, Political Science and Comparative Constitu - 
tional Law, II, 261-262. 



138. 



the first piece, no officer can be appointed by the President until 
Congress hss created the grade end made provision for it. President 
Polk complained bitterly because Congress refused to create the 
grade of Lieutenant-General during the Mexican Way 8nd thus permit 
him to appoint a commander to outrank Scott and Taylor. "My situa- 
tion", he said, "is most embarrassing. I am held responsible for 
the far, and I am required to entrust the chief command of the army 
to a General in whom I have no confidence."^ 9 During the recent war, 
however, Congress gave the President authority (with the consent of 
the Senate) "to appoint for the period of the existing emergency 
such general officers of appropriate grades as may he necessary . * .50 
thus vesting the President with wide discretionary powers, not only 
of eupointraent but also of determining what higher grades might be 
necessary. Under this provision, Pershing, Bliss, and March were 
each appointed to the rank of full General, a grade thus revived 
by the President for the period of the war. 51 

In the second place, the appointment of all officers of 
the army and navy is subject to confirmation by the Senate, unless 
otherwise provided by law. ^ As a matter of fact, confirmation by 
the Senate has penrrally been required only in the case of the 
higher military and navsl officers, the rule during the recent war 
being, "Th8t officers with rank not above that of Colonel shall be 
appointed by the President alone, and officers above that grade by 
the President by end with the advice and consent o^ the Senate." 53 

49 Diary of James K. Polk . IT, .'593-394. 

50 Selective Service let o* May 16, 1917 (Public No. 12, 65 
Cone-. ) . See Sec . 8. 

51 Gen. Pershinp hss since been commissioned permanent Generally 
by authority o^ act of Congress. See II. Y. Times . Sept. 4, 1919. 

52 Constitution , -^rt". II, Sec. 2, CI. 2. 

53 Selective Service Act, Sec. 1. 



Finally, Congress, under its power "to make rules for the 
government and regulation of the lnnd and naval forces," 54 may pre- 
scribe rules of eligibility governing the appointment and promotion 
of officers, and in that way limit to a considerable extent the 
President's power of appointment. It has been held, however, that 
such rules can prescribe only the mode in which vacancies shsll be 
filled, end hence do not confer upon the officer nert in the order 
o-p succession any right to the vacant place, nor control the Presi- 
dent in his discretionary power to appoint some other individual. 55 
Congress can in no way dictate what appointments shall be made; 
it can only determine how they shall be made and limit somewhat the 
field o* selection by prescribing certain rules. Moreover, the 
President is entirely free to select whom he will from among the 
officers for any particular duty or command, without consulting the 
Senate ! nd without regard to seniority in rank. General Pershing 
was thus chosen to command the American Expeditionary Force in the 
recent war, although he was not the ranking officer in the army at 
the time. In fact, any question that may arise as to the relative 
rank of officers in the various branches of the service is under- 
stood to be within the power o r the President, as Commander-in-Chief 

56 

to settle without legislation by or consultation with Congress. 

54 Constitution, ^rt. I, Sec. 8, CI. 14. 

55 15 Op. Atty. Gen .. 13, 14; 29 ibid . . 254, 256. See also 
message of President 1,'onroe, Apr. 13, 1622, and veto message of 
President Harrison, Feb. 26, 1691. Richardson, op. cit . , II, 132, 
133; II, 138. Cf. ?eft, Our Chief Magistrate and Ms Powers . 127- 
128; and Story, Commentaries , II, 350, n. 2. During the recent war, 
the rules roverring appointments, promotions, and assignments vere 
announced by General Order. Official U. S. Bulletin . Sept. 20, 1916 

56 Diary of James K. Polk , I, 264-2t5. 



140. 



The power to dismiss or remove military and naval officers 
especially in time o? war, is likewise considered one o** the pre- 
rogatives of the President as Commander-in-Chief, end a necessary 
incident o^ his right to appoint them.^ 7 In fact, it has been held 
by distinguished authority to be an rbsolute power, though one that 
ought to be exercised with great discretion, and extends even to 
the removal of officers appointed with the consent o^ the Senate." 
From the very organization the government under the Constitution 
till the Civil War, the r>ower to dismiss officers of the army and 
navy from the service was regarded as vested in the President by 
the Constitution, was not questioned, and came to be considered as 
one of the inherent powers of the Txecutive office. 60 congress in 
1862 specifically recognized this power of the President in an act 6 - 1 - 

which the Attorney-General later characterized as "simply oeclara- 

62 

tory of the long-established lew." 

However, by the acts of March 3, 1865, and July 13, 1866, 

Congress divested the President of his absolute power of removal 

at all times, requiring that in time of prace an officer could be 

dismissed only upon sentence o-* a court-martial or as commutation 

63 

such sentence. In 1867, Congress went further, and in the 
Army Appropriation Act o^ that year provided that all army orders 
should pass through the General of the army, who war required to 
keep his headquarters at ' ashington and who should not be removed, 



57 Burgess, op. cit .. II, 262; Blake v. IT. S .. 103 U. S., 227, 
236 (1880). 

58 Memoirs of John Quincy Adams . IV, 410. 

59 Shurtleff v. U. S .. 189 U. S., 311, 314-315 (1903). 

60 4 Op. Atty. Pen ., I, 609-613; 6 ibid . , 5-6; 6 ibid . , 230- 
232; 12 ibid ., 424-426. cf. U.S. v. Guthrie- , 17 How. , 283, 30*6^307 (1854 

61 "TcT of July 17, 1862. 12 Stat, at L. . 594, 596 (Sec. 17). 

62 15 Op. Att: ; . Gen. . 421. 

63 13 Stat . at L. , 489; 14 ibid., <2. 



141. 



suspended, relieved from his command, or assigned to duty elsewhere, 
except at his own request or by the approval of the Senate. 64 Presi- 
dent Johnson signed this act under protest, holding that it in ef- 
fect deprived the President of the command of the army; and having 
obviously been passed as a measure designed to control him in parti- 
cular, its injustice and inexpediency were soon recognized and it 
was soon repealed. ^5 The Supreme Court further held, with regard 
to the act of 1866, that it was in effect only a declaration that 
the power thereto exercised by the President of summerily dismissing 
officers without the consent of the Senate, should not exist in 
time of p^ace. "There was, we think, no intention to den^ or 
restrict the power o^ the President, by and with the advice end con- 
sent o* the Senate, to displace them by the appointment o^ others 
in their places." 66 

The right of the President to make removals at his dis- 
cretion Ln t ime o J we r remained unimpaired by these acts of Congress, 

and was again specifically recognized during the recent war by the 

67 

Selective Service Act. Efficiency Boards for examining into the 
qualifications of officers were provided for by that statute, but 
it was held that these were to be convened merely as a matter of 
administrative convenience for the information of the President, 
and "do not impair or restrict the power of the President to dis- 
charge for any caus c which, in the judgment of the President , would 
promote the public service." It was further held that, even though 
the President dismissed an officer because of the recommendation of 
an illegally and irregularly constituted board, "the legality of an 

64 Act of Mar. 2, 1867. 14 Stat, at L . . 486-487 (Sec. 2). 

65 July 15, 1870. 

66 Blake v. U. S .. 103 U. S., 227, 236 (i860). 

67 Sees. 1, 9. 



142. 



executed discharge by the President cannot afterwards be questioned, 

because of the full and summary powers conferred upon him by the 

statute. n6e Other opinions have likewise upheld the inherent , as 

well as the statutory, power of the President to dismiss officers 

in time of war, without the consent of the Senate, or the recommen- 

69 

dation o+ a board, or trial by court-martial. Having once dismis- 
sed an officer, however, or accepted his resignation, the President 
cannot revoke that action and thereby restore the officer to his 
rank and office, but must make a new nomination and secure a new 

confirmation by the Senate, if confirmation was required in the firs 
70 

instance . 

In spite of the restrictions that hare been noted, the 
President's power to appoint 8nd dismiss officers is such as to 
give him practically complete control of the 8rray and navy, especial 
ly in time of war, and to add considerably to his powers and pres- 
tige as Commander-in-Chief. It is a power that was feared greatly 

71 

at the beginning, and it is a power that needs to be exercised 

with due caution lest political expediency rather than military 

72 

fitness become the criterion for selection. On the whole, it can 
be said that the President has in his exercise of this tremendous 



68 Opinions of Acting Judge Advocate General Li8yes, May 10 & 
July 15, 1918, in Vipmore, Source-Book o^ Military Law and 7/ar-Time 
Legislation , 752-755, 790-794. 

69 Cf. opinion of Acting Judge Advocate General Ansell, Apr. 
9, 1918. Ibid . . 731-735. 

70 Mimmack v. U. S ., 97 U. S., 426, 435, 437-438 (1878); 
Memoirs of John ^uincy Adams , VII, 14. 

71 See Luther Martin's letter to the Maryland legislature. 
Elliot's rebates , I, 379. 

72 For an interesting insight into the problem that sometimes 
confronts the President in this connection, see Diary of James K . 
Polk . I, 412-413. President Wilson has been accused o^ being guided 
chiefly by political considerations in declining to give ex-Presi- 
dent P.oosevelt a command during the recent war, and in refusing to 
8csign G-en. Wood to overseas duty. 



143. 



power generally pieced the winning the war above any thought of 
personal or political advantage to himself. 

It might be well here to point out some distinctions be- 
tween the President's control over the army end navy, and his con- 
trol over the miliitia, ^or his powers of command with regard to 
the latter are considerably more limited than those with respect to 
the former. In the ^irst place, the President is not at all times 
the commander-in-chief of the militia, as he is of the regular army 
and navy. The report of the Committee on Detail in the Convention 
of 1787 (on August 6) had made the President "commander in chief 
of the Army and Navy o f the United States, and o 4 * the militia of the 
several Statee ." thus mmlrinp no distinction between the power of 
command over the militia and that over the regulrr forces, but giv- 
ing the President complete command of both at all times. When the 
report came before the Convention, however (on August 27), objection 
was immediately mede and Iv'r. Sherman's amendment giving the Executiv; 
command o^ the militia only "waen cslled into the actual service 
o-** the United States" was adopted with but two dissenting votes. 74 
That change in language placed a very definite restriction on the 
power of the President to command the militia only upon the stated 
occasions, it beinp at other times under the command of the execu- 
tive of each particular state. 

In the second place, the President cannot order the militiu 
into "the actual service of the United States" and thus become its 
commander-in-chief, simply upon his own authorityl The Constitution 

73 Madison's Journal ( Hunt e d . ) , II, 86. 

74 Ibid . , IT, 255. The jealous cere with which the states wish- 
ed to preserve *the militia as distinctively state troops under the 
command of state authorities is shown further by the various amend- 
ments proposed in the state ratifying conventions. See Elliot s De - 
betes , I, 331 , 335 ; II , 545-546 , 552; III, 660; IV, 108, 245. 



144 



gives the President no authority in that respect, hut vests in Con- 
gress the power "to provide for calling forth the militia." 75 It is 
true that Congress has carried out this constitutional provision by 
giving the President in turn definite statutory authority to call 
out the militia under certain circumstances; nevertheless it also 
remains true th^t while the President's power to command the army 
and navy is complete and exclusive, he has over the militia, in 
the words of Hamilton, "only the occasional c omme nd of such part as 
"by legislativ e provision may he called into the actual service of 
the Union." 76 

Thirdly, the President is very definitely limited in the 
purposes for which he msy use the militia, even after it has been 
lawfully called out and placed under his command. The Constitution 
gives Congress the riffht to provide for calling forth the militia 
only "to execute the laws of the Union, to suppress insurrections, 
end to repel invasions," 77 and of course Congress cannot empower the 
President tc use the militia for any other purposes. 

The President has, however, been granted as wide powers 
as this constitutional provision will permit. By the Act of Septem- 
ber 29, 1769, Congress authorized the President 1o csll out the 
militia to repel Indian invasions, 78 and the Act of May 2, 1792, ex- 
tended that authority to include all the cases mentioned in the 
Constitution. This act, as well as the Act of February 28, 1795, 
broadened the power of the President still further by authorizing 

75 Constitution . Art. I, Sec. 8, CI. 15. 

76 The Federalist. ITo. 68 (69) (Goldwin Smith ed., p. 381). 
See also Johnson v. Sayre , 158 U. S., 109, 115 (1695). Cf. President 
Fillmore's discussion o* the distinction between the President's 
powers in this respect in his message of Feb. 19, 1851. Richardson, 
op. pit .. V, 104. 

7"7 Constitulon . Art. I, Sec. 8, CI. 15. 
78 Annals of Cong . , 1 Cong., II, App., 2199 (Sec. 5). 



145. 



him to cell out the militia not only in case of actual invasion, 
hut also whenever there is " imminent danger of invasion from any 

7 9 

foreign nation or Indian tribe," thus introducing for the first 
time the element of discretion. By means of amendments and sup- 
plementary acts, the powers of the President in this respect have 

80 

"been still further broadened and amplified. 

Several important constitutional questions as to the power 
of the President h8ve been raised under the provisions of these 
acts. Thus, when President Madison called out the militia for 
service in the War of 1812, the question immediately arose as to 
where the power rested to determine when the emergency contemplated 
by the Constitution existed. The governors of three states (iiassa- 
chusetts, Connecticut, and Rhode Island) refused to respond to the 
call, in part on the ground that it was within the power of the 
executive of each state to determine whether the need for militia 
was so great as to warrant its being called out, and that in their 
opinion no such emergency existed at that time. In this opinion 
they were supported by the Liassechusett s Supreme Court and the 
Hartford Convention. Secretary of War Llonroe, however, dissented 
vigorously from this view and held that it was within the discretion 
of the President alone to determine the existence of a constitutional 
exigency for calling out the militia. 82 He was supported at the 
time by the committee of Congress chosen to investigate the situa- 

79 Annals of Cong .. 2 Cong., App. , 1370 (Sec. 1); 3 Cong., 
App., 15C8 (Sec. 1). 

80 Acts of July 29, 1861; Dick Lxilitia Act of 1903; National 
Defense Act o* 1916. 12 Stat, at L . , 281; 32 ibid . . 775, 776; 

39 ibid., 166, 201. 

81 McMaster, History the People the United States . Ill, 
544-546; IV, 251; Am. State Papers . Llil. Affairs , I, 605, 610-612; 
8 Mass. 548 549. 

^"2* Im. 'state Papers , i.:il. Affairs , I, 6C5-606. 



146. 



83 fi4 
tion, and later by the Supreme Court, end it is now generally 

recognized that the President has exclusively this discretionary 

authority. 

Another much-disputed question concerns the extent to which 

the President may use the militia outside the limits of the United 

States. In the V;ar of 1812, in the Seminole War of 1818, and in the 

Mexican 7/ar of 1846, the militia was ordered out and actually used 

85 

across the border of the United States, the action in every case 

being based on the authority for its use in repelling- invasions. 

There was some attempt in Congress in 1812 to give the President 

definite statutory authority to use the militia forces outside the 

United States, but after a debate in which most of the members 

seemed to think such use unconstitutional, the matter was left un- 
8 6 

settled. In the Seminole War of 1818, specific authority was 

given to use the troops (consisting largely of militia) across the 

87 

Florida border in ease of necessity, and in the Llexican War the 
President was expressly authorized to cell out militia to s^rve dur- 
ing the war, which it was known would be waged on enemy soil, 
iiuite recently Congress again showed its inclination to permit the 
use o* militia outside the limits o^ the United States when in the 



83 See its report, Am. State Papers, Mil. Affairs . I, 604. 

84 Martin v. L.ott . 12 '.The at.. 19. 31-22 (1827); Luther v.Bordej 
7 How*, i" 43 ( 1848 ) . The various occasions upon which the militia 
has been called into the federal service are cited by Quincy Wright 
in "Military Administration" , in Report of the Efficiency and Economi 



Committee. State of Illinois. 1915 , 897-903. 

8~E Monaster, op. cit ., Ill, 436; IV, 12-18; £uincy Wright, 
op. cit .. 898, 899. 

ITS' Annals of Conp .. 12 Cong., I, 728-802; Elliot's Debates . IV 
459-460; McKaster, op. cit .. Ill, 438. 

87 See messee-e of President Monroe, Mar. 25, 1818, Am. State 
Papers, Mil. Affairs . I, 681; letter of Sec. o* 7/ar Calhoun to Gen. 
Gaines, Tec. 16, 1817, ibid . , 689. 

88 Quincy Wright, op. cit ., 899; cf. Upton, Military Policy of 
the United States. 196-197; Act of May 13, 1646, 9 Stat, at L . . 9. 
(Sees. 1,2). 



147. 



amendment of 1908 to the Dick Militia Act of 1903, it was provided 
that when called out, "the militie shall continue to serve during 
the time so specified, either within or without the territory of 
the United States unless sooner relieved by the order of the Presi- 

OQ 

dent." A similar provision was included in the Act of February 

90 

16, 1914, with regard to the naval militia. 

The constitutionality of these provisions has been in dis- 
pute. A portion of the militia ordered into Canada in 1812 refused, 
on constitutional grounds, to cross the border, and a high authority 

thinks it doubtful whether any military court could have vindicated 

91 

its jurisdiction hs-d it attempted to punish this disobedience. 
A portion did cross, however, and the precedents of the wars of 1612, 
1818, and 1846, would seem to be authority for the view that militia 
may be used outside the United States if necessary to repel invasion, 
Attorney-General Wickersham took that view in an opinion rendered 
in 1912: "If the militia were celled into the service of the Genera:, 
government to repel an invasion, it would not be necessary to dis- 
continue their use at the boundary line, but they might (within 
certain limits, at least) pursue 8nd capture the invading force, 

even beyond that line, and just as the Regular Army might be used 

92 

for that purpose." Pomeroy, however, holds that "in no esse can 
they be compelled to serve without the territory of the Union, The 
laws must be executed where they have force, and that is only within 
the country itself. Insurrections and invasions must be internal. 

89 35 Stat, at L ., 399, 400 (See Sec. 3). 

90 36 ibid .. 26'%. 284 (Sec. 4). 

91 Ordronaux, Constitutional Legislation in the United States, 
504. Monaster seems to think the refusal o p the militia to cross 
was due to cowardice rather than to any const itu^ ional scruples. 
History of the People o^ the United States . IV, 12. 

92 29 Op. Atty. Gen ., 322, 524. 



148. 



We do not repel an invasion by attacking the invading nation upon 
its orn soil." The furthest he is willing to go is to admit 4 hat 
the militia may be celled out before the invaders have set foot upon 
our territory. "It is a fair construction of language to say that 
one means of 'repelling' an invasion is to have a force ready to 
receive the threatened intruders when they arrive. 

While there may thus be some doubt as to whether, or to 
what extent, the militia may be used outside the United States in 
the repelling of invasions, practically all authorities seem to 
8gree that it cannot be used, as militia, for the purpose of invad- 
ing a foreign country or carrying on an offensive war outside the 
jurisdiction o r the United States. Thus Attorney-General Wickersh8m 
in the same opinion in which he held that militia might be taken 
across the border to repel an invasion, held the act of 1908 un- 
constitutional in so far as it authorized the use of the militia, 

94 

as such, for the purposes of 1 arfare in foreign countries. Judge 
Advocate General Davis in 1908 had rendered an opinion to the con- 
trary, arguing that a declaration of war is a law for the execution 
of which the militia may be called out and sent wherever necessary 
to carry out its purposes: 9 ^ but the weight authority is in sup- 
port of the view that the militia cannot as such be sent out o^ the 

96 

United States for the purposes of a foreign war." 

Finally, with regard to the appointment of officers for 
the command of the militia, the powers o+ the President are very 



n 



93 Pomeroy, Constitutional Law ( Bennett's ed . ) . 387. 

94 89 Op. Atty. Gen . . 329. 

95 See Gong. Record , XLII (60 Gong., 1 Sess.), 6943; cf. opini 
of Asst. Atty. Gen. Boyd on the position the militia in the Spanish 
War. 22 Op. Atty. Gen. , 225, 227-228; 536, 540. 

96 Pomeroy, Constitutional Law . 387; Von Hoist, Const itut ional 
Law, 170; Ordronaux, Constitutional Legislation , 501-502; Dig. Ops . 
J. A. G. (ed. 1901) . 483. 



149 



much limited. The Constitu" 1 ion definitely reserves to the states 

97 

the appointment of such officers, hut the Constitution is not 
clear 88 to whet authority may appoint the commanding- officers when 
several different militia units, or militia from several different 
states, ere called into the service of the United States. 

There is no doubt '.hat the President hinself may take per- 
sonal commsnd on such occasions, since he is made commander-in-chief 
of the militia "when called into the service of the United States," 
as he is of the regular army and navy at all times. President Wash- 
ington was not only clear as to his right to take personal command 
of the militia forces upon such occasions, but, in the case o* the 
Whiskey Rebellion in 1794, was also convinced o- 4 * the necessity 
for exercising that right. He assumed active command o* the militia 
forces assembled to crush the insurrection, visited the piece of 
rendezvous, end personally directed the forward movement of the 
troops, living end marching with them as ective commander in the 
field from September 25 to October 20, when, as he informed Con- 
gress in his message of November 20, "if the state of things had 
afforded reason for the continuance of my presence with the array_, it 
would not have been withholden. But every appearance assuring such 
an issue as will redound to the reputation and strength of the 
United States, I have judged it most proper to re sume my dut ies at 

the seat of Government , leaving the chief command with the Governor 

98 

of Virginia (Ma jor-General Henry Lee)". There wee apparently some 

criticism of .Vashingt on' s course at the time as be1n- unconst itutio- 

99 

nal, which the President denounced es "impertinence " , although he 

was careful to say that "imperious circumstances I lone" could 

97 Art. I, Sec. 8, CI. 16. 

98 Am. State Papers . i^isc . , I, 64 ; See also letters of Weshington 
to Mai .Gen.Ieniel Morgan, 0~ct78, 1794 , and to Ha J .Gen. Lee, Oct .20,1794. 
Writings of George • asMngton, X I I, 469-470, 479-480;cf. Oliver, Alexandet 
Ti? j mllton -7-546'^47. 99-TfYTt inw~o~*"~fte~Q"rge 'Vftshingt 65 , XI T. 474 . 



150 



justify his absence from the seat of government while Congress was 
100 

in session. 

Washington's action in this case was not o r course a esse 
of exercising personal command in time of actual war, hut of domestic 
trouble. Nevertheless it is cignifioatnt as showing that Washington 
did not hesitate to leave his civil duties to take active command 
of troops in the field, even when Congress was in session, and it is 
not at all unlikely that he would have done the same in case of more 
serious difficulties with foreign powers. 

As a matter of fact, it was seriously asserted during the 
War o 4 * 1812, that when the militia was called into the service of 
the United States, the President could not delegate his right of 
command to any officer in other words, thst he could under no 
circumstances appoint any other officer to command militia forces — ; 
hut that whenever different detachments of militia were called out, 
or militia from different states, the President wat under the obli - 
gat ion of assuming personal command. This was the contention of 
the governors of the three states refusing to furnish militia, when, 
in reply to President Madison's call upon the militia for service 
during that war, they gave as one reason for objecting to letting 
the militia out from their jurisdiction, "That when the militia 
of a State should he called into the service of the United States, 
no officer o^ the regular arm;; had a right to com-nand them, or other 
person, not an officer of the militia, except the President of the 
United States in person . " 1Q1 



100 Writings o* George Washington . XII, 469. 

101 Am. State Papers . Kil. Affairs , I, 605, 610-6^1. 



151. 



This view of the governors was sustained at the time by 

102 

the Ivlassaohusett8 Supreme Court, hut was later vigorously con- 
iemned hy Secretary of war Monroe, in an opinion given to a commit- 
tee of Congress, February 11, 1815, in which he said that such a 
construction was one "for which I can see nothing in the Constitu- 
tion to afford the slightest pretext." He maintained that the 
President was under no greater obligation to command the militia 
in person than the regular troops; that the power to command both 
was vested in him principally for the purpose of giving him that con- 
trol over military and naval operations which is a necessary attri- 
bute of the executive branch of the government; that his actual 
presence with the troops, either militia or regular forces, was 
under no c ire instances necessarily contemplated by the Constitution; 
thst "in construction of law he is commander-in-chief, though not 
present." 103 

Monroe's position with regard to the meaning o" the Con- 
stitution was eminently sound. It can hardly be imagined that the 
framers o^ the Constitution intended anything else than that the 
President should be the Judge as to the wisdom and necessity of his 
personal presence with the troops; still less can it be imagined 
that any distinction was intended between the President's obligations 
in that respect toward the militia and the regular forces. The 
general practice on all occasions upon which the militia has been 
celled out, es well as authoritative opinion, would therefore in- 
dicate that w^en the militia has been called into the service of 
the United States, it comes under the control of the President as 

102 Am. State Papers , i:il. Affairs , I, 611-612; 8 Llass . . 548, 
550. Cf. also debate in Congress, Apr. 17, 1812. Annals of Cong ., 
12 Cong., 1 Sess., II, 1324. 

103 Am. State Papers, L:il. Affairs . I, 606. 



15S. 



Commander-in-Chief, end may be commanded by him personally or by any 

104 

officer designated by him, whether of the regular or militia forces. 



104 Ordronaux, Constitutional Legislation in the United States . 
505; 2 Op. Atty. Gen .. 711; Story. Commentaries . II, 316 n; Am. State 

Papers . L'il. Affairs . II, 102. 



153. 



Chapter VIII. 
Powers of Military Jurisdiction . 

For the exercise of military jurisdiction, two principal 

military tribunals have come into being — courts-martial , for the 

; trial of offenders against military law, and military commissions , 

for the trial of offenders against the laws of war and under martial 

lew. The authority of the former is conferred and defined largely 

by statute, under the power given to Congress "to make rules for 

..2 

the government and regulation of the land and naval forces; while 

the authority of the latter is derived principally from the common 
3 

law of war. 

Although the authorization of courts-martial is thus in 
the hands of Congress, their control afterwards rests almost ex- 
clusively with the Executive branch of the government. They are 
created, ija every case . by military order issued by commanding of- 
ficers having euthority under the Articles of War to cell them into 
4 

being. "They are creatures of orders , the power to convene them, 
as well as the power to act upon their proceedings, being an at- 
tribute of command."^ 

The President is expressly authorized by statute to con- 



1 For the distinction betv/een military law and martial law, seje 
Manual ?or Courts-Martial. U. a. ^rmy (ed. 1917), 1-2; Davis, Treati se 
on the Military Law o^ the United States (2nd ed.), 5; Birkhimer, 
Uilitary Government end Llartiel Law ( 2n*a ed.). 271-3 91. See also an 
excellent tabular statement in Levis, op. cit .. 12. 

£ Constitution . Art . I, Sec .8, Cl.lTI The rules enacted by Con- 
gress under this provision arc for the most part included in what 
ere called the Articles of War. The latest revision of these may cdh 
veniently be found in Manual for Courts-Mart ial . 305-329 (App.I); alsj 
a concise history of the Articles in the same Manual, ix-xiii. 

3 See Lieber's Instructions for the Government of Armies of th 
United States in Time of War, G. 0.100, A. G.O. ,1863, in Birkhimer, op_, 

cit., 635. . ljL 

4 Davis, Treatise on, Military Law . 16. 

B D i g. Op s. J .A. P.. (' eu .1^11 j r~ZF3. 



154 



vene general courts-mart ial under certain circumstances. He is by 
no means, however, limited to the! specific case, nor dependent 
upon statutory authority, but is empowered to convene such courts- 
martial "generally and in any case", by virtue of his constitutional 

7 

authority as commander-in-chief. In an opinion rendered June 6, 
1877, Attorney General Devens, after reviewing the law and precedent^ 
on this subject, said: "The authority 0* the President to appoint 
general courts-martial, in cases wherein he is not expressly 
authorized so to do by Congress, may therefore be regarded as well 
established. It rests directly upon the provision of the constitu- 
tion which makes him Commander- in-Chie^, as interpreted by the law 
and usage 0^ the military service existing when that instrument was 
-"ramed; it is sustained by the doctrine laid down in American works 
0^ authority on courts-martial, the views expressed by one of the 
standing committees of the House (that on Military Affairs) whose 
special business it is to make itself conversant with subjects of 
this character, and an official opinion of the lite distinguished 
head 0^ the Bureau of Military Justice, Judge Holt; and, moreover, 
it is confirmed by long-continued practice, extending back nearly 

Q 

to the beginning 0^ the Government." 

That power of the President has further been supported by 
the Judiciary Committee of the Senate; 9 and it has been exercised 
on numerous occasions, both before and after the passage of the 
statute in question, notably in the cases of Brigadier General Hull 
(1813), Major General Wilkinson (1814), Major General Gaines (181Q), 



6 Act of May 29, 1820. 4 Stat, at L .. 417. 

7 Swaim v. U. S. t 165 U. S., 553, 558 (1897); Dip. Ops. J.A.G 
568; Davis, op. cit. , 17. 

8 15 Op. Atty. Gen ., 302-303. See also ibid . , 297-301. 

9 Report No. 868, Mar. 3, 1879, 45 Cong., 3 Sess., cited in 
Davis, op. cit .. 17, n. 



155 



Major General Twiggs (1858), Brigadier Genpral Paine (1865), and 
many others. 1 ^ 1 The power so exercised is "a striking- illustration", 
es was said by one authority, "of en undefined constitutional power, 
for it is nothing less then the power to constitute tribunals with 
judicial jurisdiction extending even to trials for capital offen- 
ses." 11 

The fact that military commanders subordinate to the 
President may also upon occasion convene courts-martial, can in no 
sense be understood as a limitation upon the President's constitu- 
tional power to summon these courts at his discretion. "A military 
officer cannot be invested with greater authority by Congress than 
the commander-in-chief, and e power of command devolved, by statute, 
on an officer of the Army or Navy is necessarily shared by the 
President. . • Since the earliest legislation of our Government 
it has undoubtedly been understood and intended that whatever 
powers were granted to general officers were, at the same time, 
granted and intended to be shared by the President • . . whose name 

is understood as written in every statute which confers upon a 

..12 

military officer military authority." 

The President may, however, act through his subordinates. 
Thus, a convening of a general court-martial by the Secretary of 
War is held to be in law a convening by the President, and as legal 
as if the President himself had signed the order, such act of the 
Secretary being y^urely administrative end in law the act of the 
President whom he represents. ^ 



10 See list of courts-martial convened by order of the Presi- 
dent in 15 Op. Atty. Gen ., 3C1-302. 

11 Lieber. Remarks' on A r my ^Regulations . 25. 

12 Davis, op. cit ., 17, n; cf. 8th Article of \7er, in Manuel 
for Courts-I.'.ertial . 309-310. 

13 _ Dig. Ops. J. A. G., 290, 568, 644-645. 



156 



The constitution of general courts-mart ials is also sub- 
ject to the control of the Executive. The appointing authority, 
whether it he the President or e subordinate commencing' officer, 
designates the number of officers, between the statutory maximum 

(13) and minimum (5), that are to constitute any particular court 

14 

in any case, and his decision is final. Even during a trial, 
members of a court may be relieved from duty with the court and 
! ordered to other service, or new members may be added, without af- 
fecting the functioning of the court or the validity of its pro- 
ceedings, provided merely that the membership is not reduced below 

15 

the minimum nor increased beyond the maximum. Even the reduc- 
tion o* a court belov/ the minimum does not dissolve it, its sit- 
tings be in? merely interrupted until sufficient new members are 
added, and the validity 0"" its proceedings being unaffected. "Thus 
the membership of the court, both as to numbers within statutory 
limits and as to personnel, is entirely within the control of the 
appointment or superior military authority at all times.""'" 

The President also has entire control over the methods 

17 

end procedure of courts-martial. The procedure for preferring 
charges and bringing the accused to trial is prescribed almost ex- 
clusively by regulations end the customs of the service, while the 
rules of evidence are those of the Federal courts as modified by 
Executive regulations. 

Likewise, the President may to e large extent control the 
findings and sentence of courts-martial. The Articles of War ex- 

14 Martin v. Mott . IE V/heat., 19, 34-35 (1827). 

15 Of course there are certain rules requirinp the reading 
of the previous record to the new members, etc., but there is in 
no sense a retrial. 

16 E. II. Morgen, in Yale Law Jour . , XXIX, 60-61. 

17 See 38th Article of V.ar, in Manual for Courts-Ma rt ial . 314 . 



157 



pressly provide that the approval of the appointing- officer or of 

his successor in command is 8 condition precedent to the execution 

of any sentence, and that the appointing authority may approve or 

disapprove the finding, or approve or disapprove the whole or any 

18 

part of the sentence. The President acts as the reviewing autho- 
rity in all cases tried by courts-martial convened by himself, 
either under his general authority as Commander-in-Chief, or as 
expressly provided by statute; in cases of sentences respecting 
general officers; in cases of sentences of death or dismissal ad- 
judged in time of peace; and in all cases submitted to him for 
action in time of war. He may approve or disapprove in whole or in 
part the findings or the sentence, or he may mitigate the punish- 
ment.^^ 

Also, by custom of the service, the President or other 
appointing authority may return the record in any case for recon- 
sideration and revision, whether the finding is guilty or not guil- 
ty. A rule of procedure prescribed by President Wilson, effective 
August 10, 1919, modified this in so far as it abolished the power 
to return a finding o^ acquittal for reconsideration or any sentence 
for revision upward, but of course another President or President 
Wilson himself mifrht revoke this order and thus restore the former 
practice. While the Executive has thus almost complete control 

over the findings and sentences of courts-martial, Congress has no 

21 

power whatever either to revise or reverse their judgments. 



18 46th & 47th Articles of War. Manual -**or Courts-Mart ial . Z15-$l&. 

19 Dig. Ops. J. A. G. t 568-569. But when such approval or 
disapprovpl has once been given and the accused duly notified, it 
is beyond the power the President to change his decision, even 
though his action may afterwards be found to have worked an injus- 
tice. 15 Op. Atty. Gen .. 290, 297. 0^ course the President may 
still pardon the accused, if punishment is unexecuted. 

20 G.0.88,W.D. , sec.l, July 14 , 1919, quoted in Yale Law Jour .XXLC, 

21 Am. State Papers , lIH. Affairs , V, 17-18. ' 63, n, 



158 



As in the case of the convening- of courts-msrti&l, so the 

action of the President respecting their procedure, findings, and 

22 

sentence, while it should he the result of his own judgment, need 

£3 

not be under his own hand, any action of authorized subordinates, 
such a? the Secretary of War and the Secretary of the Wavy, being 
presumed in law to be the act of the President. But confirmation 
of findings end sentence by some Executive authority being require 
in all esses before execution of sentence, courts-martial can hard- 
ly be considered as anything but advisory bodies, with the power of 
making recommendations or of reporting findings of fact and con- 
clusions of law to a non- judicial superior, whose principal func- 
tion is that o^ en executive. "The system then is clearly one 
of review by superior military authority, which may, but need not, 
ask or follow the opinion of legal advisers, and is in no respect 
judicial. . . The principle at the foundation of the existing 
system is the supremacy of military c ommand . To maintain that prin- 
ciple, military command dominates and controls the proceeding from 
its initiation to the final execution of the sentence." 

Courts-martial differ widely, therefore, from civil 
courts. The latter are created by statute, which also describe 
their composition, define their jurisdiction and procedure, 8nd de- 
termine the times end places of their sessions. Courts-martial, 
though authorized by statute, are created end dissolved in every 
case by executive authority; the Executive likewise determines their 

E2 Hunkle v. U. S. . 122 U. S., 543, 557 (l8e7). 

23 U. S. v. ?letcher . 148 U. S., 84, 88-89 (1893). 

24 Ibid . , 91; U.S. v. Page , 137 U. S'.~, 673, r 679-680 (1891); 
Bishop v. U. 3 ., 197 U. S. f 334, 341-342 (1905). 

2"E Glenn, The Array and the Law . 35-42. 

26 E. M. Morgan, op. cit ., 65, 66. The opinion of the Judge 
Advocate General is in some c r ses required before execution o" sen- 
tence, but only by Gen? ral Order. His advice is generally followed 
by the rcviewjjqg-^uJ;h #j?j^^-^ h n n hfpji-dia-- 

regarded. 



159. 



composition, defines their procedure, and controls their ^ind ings 

end sentence. It therefore seems correct to say, as do most authori 

ties, that courts-martial rre no part of the judiciary of the United 

27 

States, but simply ape ncies or instrumental it ies of the Executive . 

Military commissions , as contrasted with courts-martial, 
are of comparatively recent origin in the United States, having been 
initiated by General Scott in Mexico in 1847. 2 ® Courts -martial, as 
has already been noted, are instituted for the trial of offenders 
against military law , th8t is, their jurisdiction is restricted by 
statute to military persons and to certain specific offences defined 
by l8w. Hence other tribunals have be^n found necessary for the 
trial of civilians as well 8S military persons, who are accused of 
criminal acts contrary to the common laws of war and under martial 



27 Davis, op. cit .. 15; Dip. Q-ps. J. A. G. , 283; 7/illoughby, 
On the Constitution. II. 1197. S. T. Ansell, recently Acting Judge 
Advocate General, admits this conclusion, but criticizes severely 
the system that makes such a conclusion necessary. See his article, 
"l.'ilitary Justice," in Cornell Law Quar . . V, 11-17 (Nov. 1919), esp. 
5-7. But compare the Supremo Court opinion approving the follow- 
ing statement by Attorney General Bates: nm he whole proceeding 
from its inception is judicial. The trial, findings, and sentence 
are the solemn acts of a court organized and conducted according 
to the prescribed forms o^ law. It sits to pass upon the most 
Becred questions o" human rights that are ever placed on trial in 
a court of justice; rights which, in the very nature of things, can 
never be exposed to danger nor subjected to the uncontrolled will 
o^ any man, but which nust be adjudged according to law." Rankle v. 
U. s.. 122 U. S., 543, 558 (1887). For an excellent review and 



criticism of the present court-martial system, see an article, al- 
ready occasionally referred to, by E. H. korgan, "The Existing Court 
Hertial System and the Ansell articles", Ysle Law Jour . , XXIX, 52- 
74 (IIov., 1919). For a defense of the present system, see an arti- 
cle by G. G. 3ogert, professor of law in Cornell University and 
recently Judge Advocate o^ the 78th Division, "Courts-Mart i8l : 
Criticisms and Proposed Reforms," in Cornell Law Quar .. V, 18-47 
(Nov., 1919) . 

28 See Gen. Scott's G. 0. No. 287, Sept. 17, 1847, in Birk- 
himer, or), cit.. 581-583 (Appendix I, Par. 10, 11.). 



160. 



lew, and for this purpose the military commissions have been es- 
tablished. Thus the military commission initiated by General Scott 
was mainly for the punishment of murder, robbery, and other violent 
crimes, committed either b^ civilians or military persons, and not 
at that time cognizable by a court-martial. At the same time ano- 
ther tribunal, called the "council of war", was inaugurated for the 
punishment of offences peculiar to war, and especially crimes by 
members guerilla bands. Early in the Civil War these two tri- 
bunals wre, by practice of the military commanders and sanctioned bj 

the War Department, united into the one court called the "military 
29 

commission" . 

The authority for the creation of military commissions 

may therefore be S8id to be the same as that for the prosecution of 

war and for the exercise of military government and martial law — 

they are "merely an instrumentality for the more efficient execu- 

30 

tion of the laws of war, and as such are but another agency of 
the Executive. Though derived from the common law of war, the 

31 

ST:t>ority of military commissions has been recognized in statutes, 

32 33 
in executive proclamations, in opinions of Attorneys- General, 

34 

and in rulings of the Supreme Court, so that it is now "as well 

known and recognized in the laws of the United States as a court- 
35 

martial" . 



29 V/inthrop, Abridgment of Military Law ( 2nd ed . ) . 331-332. 

30 Ibid., 331. 

31 IcTi" of Mar. 3, 1863 (sec. 30).; July 2 1864 (sec. 1); 
July 4, 1664 (sees. 6, 6); Liar. 2, 1867 (sec. 3); and several later 
appropriation acts. 

32 Proclamations af Sept. £4, 1862 & Apr. 2, 1866. Richard- 
son, Messages and Papers the Presidents . VI, 98-99, 429-432. 

75 5 Op. Atty. Gen .. 55; 11 ibid .. 297; 12 ibid .. 332; 13 
ibid . . 59; 14 ibid' . .~249. 

34 Ex parte Valla ndigham , 1 Wall., 243 (1863); Ex parte Lit Hi - 
gan, 4 '.Vail., 2 (1866). 

35 Davis, Treatise on military Law. 308, n. 



161. 



The President has practically complete control over the 
military commissions. There is no statute prescribing how or by 
whom they ere to be constituted, or how they are to be composed. In 
practice, however, they have been created by the same authorities 
as are empowered to order courts -martial , which means the President 
himself at his discretion or his military commanders acting under 
his authority. Attorney -General Speed in 1865 upheld the right of 
the President to create such military tribunals evrn for the trial 
of non-military persons — in this case the assassins of President 
Lincoln: "I do not think", he said, "that Congress can, in time of 
war or peace, . . create military tribunals for the adjudication 
o -p offences committed by persons not engaged in, or belonging to, 
such forces. • . But it does not follow that because such mili- 
tary tribunals cannot be created by Congress, . . that they cannot 
be created at all." The Attorney-General held that under the laws 
of war, which constitute the greater part of the law of nations 
and therefore are a part of the law of the land, military commanders 
are authorized to create and establish military commissions or 
other tribunals for the trial of offenders against the laws of war, 
whether these offenders are active or secret participants, that 
"obedience to the Constitution requires that the military should 
do their whole duty; they must not only meet and fight the enemies 
o^ the country, In open battle, but they must kill 6r take the 
secret enemies of the country, and try and execute them according 
to the lews o- p war." 36 

The composition 0* military commissions is entirely within 
the authority of the President to determine. There being no statu- 

36 11 Op. Atty. Gen ., 297, 29b, 299, 308, 316. 



162. 



tory maximum or minimum cs to the number of members, as in the esse 

of courts-martial, the discretion of the President is even wider 

than for those tribunals. Military commissions heve, however, usual 

ly been composed of five members; less then three would be contrary 

37 

to precedent; but any number would be legal. 

The jurisdiction of military commissions is not defined 

by statute, but extends in practice to violations of the lews of war 

whether by civilians or military persons, in occupied enemy terri- 

38 

tory or in territory under mertial lew. The power of the Presiden 

to institute military government over occupied territory is exclu- 
39 

sive, and in that respect he controls the jurisdiction of military 
commissions. The power to institute martial law, while more doubt- 
ful, is generally held to belong properly, in time of war, to the 
Executive, as Commander-in-Chief. "The power of the Executive to 
prosecute a war precipitated upon the country carries with it by 
necessary implication", says one authority, "the incidental power 
to make use o^ the necessary and customary means of carrying it on 
successfully. If he deems the placing any district under martial 

law a proper measure, it is difficult logically to deny him the 

40 

right to do it." In practice, mertial law is always instituted 



37 finthrop, op. cit .. 333; Dip, ops. J. A. G. , 463. The mili 
t8ry commission convened by oroer of President Johnson for the trial 
of Lincoln's assassins was composed of 9 members. See Special Or- 
ders Ho. Ell Sr. 216, May 6 & May 9, 1865, in Richardson, op. cit ., 
VI, 335-336, 336-337. 

38 Winthrop, op. cit ., 333; Dip. Ops. J. A. G . , 464. 

39 Infra, Ch. IX. 

40 Birkhimer, op. cit ., 376. He admits, however, that martial 
law may be invoked "either by the executive or the law-making- power, 
although the former generally will be the case." Ibid . , 390. But 
Pomeroy criticizes the position o p the dissenting justices in &x 
parte Mill i pan (4 Wall., 2) that Congress may, under certain cTrcunH 
stances, declare martial law, as "utterly indefensible". Const itu - 
tlonel Lew. 594. Cf. Glenn, The Army and the Lav: , 185. 



163. 



by Executive authority, and hence military commissions ere depen- 
dent upon the fiction of the President - p or their jurisdiction in 
that respect also. The violations of thelews of war that come under 
the jurisdiction of the military commissions in these cases have 

been held to include all cases which do not come within the juris- 

42 

diction conferred by statute on courts-martial, and in practice 
have extended to cover almost every conceivable offence, from the 
slig v test sort of intercourse with the enemy to espionage and raur- 



In addition to the jurisdiction conferred under the com- 
mon law of war and martial law, military commissions may be used as 
a temporary substitute f or the local civil courts, when those courts 
under the stress of circumstances, have ceased to function, though 
in such cases their jurisdiction should properly be regulated by 

the local statutes governing the courts for which they are substi- 
44 

tutes. But whether exercising jurisdiction under the laws of war 
or as a substitute for the local courts, there is practically no 
linit to that of the military commissions -- if they have jurisdic- 
tion o* the person and the offence, they may proceed with the trial 

of offences committed even before the initiation of military govern- 

45 

ment or martial law. 

The procedure of military commissions, not being pre- 
scribed by statute, is likewise under the control of the Executive. 



41 Instances o^ the proclamation of martial law by Executive 
authority are f?iven in '.Vinthrop, op. cit .. 329-330. 

42 Ex parte Vallandigham . 1 Wall., 243, 249 (16 63). 

43 See list o^ offences charged as "violations the laws of 
war" during the Civil V.ar, in Dig. Ops. J. A. G. , 465; also in 
Davis, or,, cit* . 310, n. 

44 ' Dir. "Ops. J . A. G . . 468. 

45 Ibid., 464; Birkhimer, op. cit ., 533. But violations of 
the laws o" war cannot legally be tried a^ter the war or emergency 
has terminated. 77inthrop, op. cit .. 334. 



164. 



In practice, the rules of procedure laid down for courts-martial 
pre generally observed, and authorities hold that these rules should 
apply as consistently as possible. That is not obligatory, however, 
end the powers of military commissions not being defined by law, 
their proceedings are legal even if details that are required in 
courts-martial or in civil courts are omitted, such as the adminis- 
tering of a specific oath to members of the court, or giving the ac- 

46 

cused the opportunity of challenge. 

There are likewise no statutes governing the power of the 
militery commissions to inflict punishments, hence it is a power 
practically without restriction. These tribunals are not limited 
to the penalties known to courts-martial, nor are the strictly 
military renalties — dismissal from the service, dishonorable dis- 
charge, and the like -- generally appropriate, since the persons 
to be punished, are usually civilians. The punishments of death, 
imprisonment, or fine ere those usually inflicted by military com- 
missions, but, especially duri g the Civil V/ar, h^ve included also 
confiscation o^ property, forfeiture of licenses to trade, expulsion 

from certain sections of the country, furnishing bonds for good 

47 

behsvior, and taking the oath of allegiance. In no case ere the 
proceedings or sentences of military commissions subject to appeal 
to, or reversal by, any civil court. 48 

Military commissions, deriving their authority and juris- 
diction from military usage and the common law of war, and their 
creetion, composition, procedure, end decisions being* subject to 
the complete control o^ the Executive, are therefore, even rcore than 

46 Birkhimer, op. cit ., 533-534; Winthrop, op. cit ., 334. 

47 7/inthrop, op. cit. , 335. 

48 Ex parte Vallendigham, 1 "-Veil., 243, 251-252 (1863). 



165 



courts-martial f merely agencies the Executive in his cspacity 

bs Commander-in-Chief. Through the courts-martial, as has been noted, 

the President is enabled to control the discipline of the armed 

forces and enforce military Ipw. Throuph the military commissions 

he controls the administration of justice in war time, not only in 

the theater of active operations, but also in places declared by_ him 

to require the institution of martial lew, and extending to all 

49 

classes of civilians as well 8s to militor., persons. By means of 
these tribunals, the President's powers to carry on the vigorous 
prosecution of a war ere considerably extended; he is through them 
enabled to deal effectively with that class of persons who, while 
not eng^e-ed in open acts of hostility, may in one way or another be 
interfering with the success of the military operations. 

Another power of the President, which should be noted as 
of some importance in this connection, is hit power to grrnt re - 
prieves end pardons . Though finally vested in the President without 

50 

lir.itation, except in cases of Impeachment, the debates over the 
adoption of the Constitution reveal considerable fear of the war- 
time use of this power, that is, its use especially in cases of 
treason. Luther Llartin expressed this fear when he said to the 
Maryland legislature: "The power given to these persons (i. e., the 
President and Vice-President) over the Array and ITavy is in truth 
formidable, but the power of Pardon is still more dangerous, as 
in all acts of Treason, the very offence on which the prosecution 
would possibly arise, would most likely be in favour of the Presi- 
dent's own power. The Hew York ratifying convention of 1788 also 

49 There are said to have been nearly 150 cases of women tried 
by military commissions during the Civil ,/ar. Davis, op. cit . ,309.n. 

50 Constitution . Art. II, Sec. 2, CI. 1. 

51 ffsrrand's Records , III, 158; see also ibid . , E18. 

— r= L — ZZZ^! j 



showed its fear of this Executive power by proposing the -following 
amendment: "That the executive shall not grant pardons fw treason, 
aniess with the consent the Congress; but may, at his discretion, 
grant reprieves to persons convicted of treason until their cases 
can be laid before the Congress." 5 ^ 

The reaaon for vesting this power in the President was, 
however, well stated by Hamilton when he wrote: "But the principal 
argument for reposing the power of pardoning in this case (i. e., in 
case of treason) in the chief magistrate is this: in seasons of 
insurrection or lebellion there are often critical moments when a 
well-timec offer of pardon to the insurgents or rebels may restore 
the tranquillity of the commonwealth, and which, if suffered to 
pass unimproved, it may never be possible afterward to recall. The 
dilatory process of convening the legislature, or one of its 
branches, for the purpose of obtaining its sanction to the measure 
would frequently be the occasion of letting slip the golden op- 
portunity." 63 

Though Congress has on occasion attempted to assert some 
authority and to exercise some control with respect to the granting 
of pardons, particularly in cases of rebellion and treason, 6 ^ the 
courts have uniformly held that the power of the President is com- 
plete and exclusive, and can in no way be restricted or limited in 



52 Elliot's Estates . I, 330. 

53 The Federalist . No. 73 (74) (Goldwin Smith ed., p. 411). 
But Hamilton's own draft of a constitution contained this clause: 
"He shall have power to pardon all offences, except treason , for 
which he may grant reprieves, until the opinion o 4 * the Senate and 
Assembly can be had; and, with their concurrence . may pare on the 
seme." " >-lliot T s lebrtes , V, 56 7. 

54 See Acts of July 17, 1662 & July 12, 1870. 12 Stat, et L .. 
589, 592 (Sec. 13); 16 ibid .. 230, 235. 



167, 



its effects by Congress. ^ A pardon may thus be granted by the 

President before or after conviction, absolutely or upon conditions, 

and the ground for its exercise is wholly within the discretion of 
56 

the President. 

Pardon may 8lso be granted, in the form of a proclamation 

of amnesty, to a whole class of cf fenders, without any special Con- 

57 

gressional authority. President Washington in this way pardoned 

58 

the participants in the Whiskey Rebellion of 1794; President Adams 

59 

the Pennsylvania insurgents of 1799 ;° President Madison the so- 
called B8ratari8 pirates who operated during the War of 1812. 60 
President Lincoln also used this means of offering conditional par- 
don to the rebels in the Civil War; while President Johnson is- 
sued four separate proclamations of amnesty and pardon, at first ex- 



55 Sx parte Garland , 4 Wall., 333, 380 (1866); U. S. v. Klein . 
13 '.Veil., 126, 139-140 (1871). See also Taft, Our Chief Magistrate 
and His Powers . 119-120; Bescora, Growth of nationality . 120-122; 
Glenn. The Army and the Lew . 111. 

56 A striking instance of pardon before conviction is the 
case of Maj. Gen. Gaines in 1846. Although found guilty by a Court 
of Enquiry of having violated orders and acted illegally in calling 
out large bodies of militia and volunteers without authority, and 

by these acts having greatly embarrassed the government and cost the 
treasury "many hundreds of thousands of dollars", as the President 
himself said, nevertheless President Polk refused to convene a court 
martial but ordered all further prosecution stopped. Diary of James 
K. Polk . I, 450, 480; II, 82-83. The President has also frequently 



used his power of pardoning before conviction as a means of secur- 
ing the return to duty of deserters from the military service. See, 
for example, General Orders Hob. 43 & 102, July 3, 1866, & Oct. 10 
1873, issued by direction of the President, cited in 20 Op.Atty . Gen . 
345; also executive proclamations in Richardson. op. c it . , VI . 163, 164. 
233,278. For instances of the exercise of the pardoning power after 
conviction for treason, see MoKinney, "Treason under the Constitu- 
tion of the United States", Illinois Law Rev . , XII, 361-402 (Jan.lSIB). 

57 20 Op. Atty. Gen .. 330. 

58 Proclamation of July 10,1795. Richardson. op. c it . , 1.181. 

59 Proclamation iley 21, 18( 0. Ibid . , 303. 

60 Proclamation of Feb. 6, 1615. Ibid. . 558-560. 

61 Proclamations o^ v ec. 8, 1863 & Liar. 26, 1864. Ibid . , VI, 
213-215, 218. 



168. 



eluding a large number of classes, and finally granting a full and 

6 2 

general pardon to all participants in the Rebellion. 

The chief significance of the power of pardon lies not 

only in this that it permits the President to offer clemency at his 

discretion and to correct acts of injustice done under the stress 

of war, 63 but that it 8lso enables h-'ra practically to neutralize 

the effect of statutes passed b^ Congress for a very definite pur- 

64 

pose. Thus the Confiscation Acts of the Civil War provided for 
the confiscation of all property used in aid of the rebellion, and 
of the property of certain classes in the Confederacy, whether used 
in aid of the rebellion or not; v/hile the Captured and Abandoned 
Property Act turned over to the Treasury the proceeds of all 
property picked up by Federal troops, leaving it to the owner to 
assert his claim in the Court of Claims on establishing his loyalty. 
For all these Acts, the Supreme Court held that a pardon operated 

re 

to purge the claimant of disloyalty, and hence by granting a 
general pardon the President was enabled to overrule completely 
the intent of Congress in passing these acts. 



62 Proclamations of May 29, 1865; Sept. 7, 1867; July 4, 1868; 
and Dec. 25, 1868. Richardson, op. git ., VI, 310-312, 547-549, 
655-656, 708. 

63 The Clemency Board appointed by the President to review 
court-mart lal cases adjudged during the recent war passed upon 
2,857 cases from Feb. 25 to Apr. 25, 1919, and made a partial or 
complete remission of the sentences in 91 per cent of the cases con- 
sidered. IT. Y . Times Current Kist. Llag . . X, 62 (July, 1919). 
President Lincoln's generous use of the pardon toward soldiers 
convicted of purely military offenses is well Trnown. 

64 Acts of lug. 6, 1861 and July 17, 1862. 12 Stat, at I . . 
319, 569. 

65 Act of Mar. 12, 1863. Ibid . . 820. 

66 U. S. v. Padelford , 9 Wall., 531, 542-543 (1869); U. S. v . 
Klein, 13 Sell., 128, 142 (1671). 



169 



Likewise with respect to such sets as the Espionage i ct, 
passed during the recent wer with Germany, the President raic-ht , by 
a general perdon, overcome the purpose of Congress end restore those 
convicted of disloyalty and obstruction to their full rights as 
loyal citizens. 



67 Shortly after the signing of the armistice, a strong move- 
ment developed for the pardon of the so-called "political prisoners" 
convicted during the war. See, for example, a pamphlet, "Political 
Prisoners in Federal Military Prisons", published by the National 
Civil Liberties Bureau, IJov. 81, 1918. See also The Dial . Jan. 11, 
1919, and IT. Y. Times. Lec. 26, 1919. In March, 1920, Senator 
France (MdTT introduced 8 joint resolution asking that these politi- 
cal prisoners be pardoned. United States Bulletin. Mar. 15, 1920. 
President Wilson has not yet (April, 1920) issued any such general 
pardon. 



170. 



Chapter IX. 
Powe rs of Military Government . 



Military government, or the government of occupied terri- 
tory, is defined as "that dominion exercised in war by s belligerent 
power over territory invaded and occupied by him and over the in- 
habitants thereof. Military government in this sense must be 
carefully distinguished from martial law, in that the former is 
exercised onl;: in time of war over the inhabitants of 8n occupied 
enemy country; while the letter may be instituted during any emer- 
gency, whether in. time of war or peace . over the citizens at home. 
Martial law also requires a formal proclamation or declaration 
before it can be put into effect, while military government exists 
"simply as 8 consequence o* conquest and occupation." 

The authority to institute end exercise military govern- 
ment arises : p rom the right and obligation of the invading belli- 
gerent, under the laws of war, to protect his own forces and to 
guarantee order 8nd security to the inhabitants of the conquered 
territory. In the United States, that right and that obligation 
are vested in the President, as Commander- in-Chief , end ere exer- 
cised under his direction and by his subordinates. 4 "The efficient 



1 T.inthrop, Abridgment o^ Military Law (2nd ed. j . 322 ; Cf. 
Birkhimer, Military Government and Martial La w ( 2nd ed .). 45; Pome- 
roy , Const itut ional Lew in the United States TBennett ed. ) , 595. 

Ma go on's Reports . iT". 

2 Winthrop, p T . oil. . 322-323. 

3 See Regulations of Hague Convention respecting the Laws rnd 
Customs of War on Land, Art. 43, in Scott, Texts of the Peace Con - 
ferences at The Hague . 225. 

4 "Acts of military commanders in conducting the operations 
of war, and especially in territory in military occupation are by 
the presumed authority of the commander-in-chief." Finley & Sander- 
son, The American Executive and Executive Methods, 192; cf. Me - 
chanlclTBank V. Union bank , 22 •'/all., 276, 297 (1874 ) . 



171 



prosecution of hostilities in wsr being- devolved upon the President 
as Commander-in-Chief", says V.'inthrop, "it will become his right and 
duty (unless Congress otherwise provide) to exercise military 
government over such portion of the country of the enemy as may 
pass into the possession of his army by the right of conquest."^ 

Chief -Just ice Chase hat likewise defined military govern- 
ment as military jurisdiction "to be exercised in time of foreign 
wer without the boundaries of the United States, or in time of re- 
bellion and civil war within states and districts occupied by rebels 
treated as belligerents ; ... by the military commander und er the 
6 irect ion of the President . with the express or implied sanction 
o-r Congress. " 6 

The powers of the President with respect to military gov- 
ernment are practically absolute, being limited, neither by the 
Constitution and laws o^ the United States nor by the laws of the 
country under occupation, but solely by the laws end usages of war. 
"It is not the civil law of the invr-ded country; it is not the 
civil law of the conquering country; it is military law -- the law 
of war" — that governs a military occupant. As Commander-in-Chief 
it is within the jurisdiction of the President to determine when 



5 Abridgment of llilitrry Lev . 324. 

6 Ex parte Lilligan . 4 Wall., 2, 141-142 (1866). 

7 T^ow y. Johnson . 100 U. 3., 158, 170 (1879). "In such cases 
the laws of war tske the place of the Constitution and laws of the 
United States as applied in ti^.e of peace." Jew Orleans v. The 
Steamship Company . 20 Wall., 387, 394 (1874). "The right of one 
belligerent to occupy and pov^rn the territory of the enemy while 
in its rilitsry possession, is one of the incidents of war, and 
flows directly from the right to conquer, ft, therefore, do not 
look to the Constitution or political institutions of the conqueror 
for authority to establish a government for the territory of the 
enemy in his' possession, during its military occupation, nor for 
the rules by which the powers of such government are regulated ^nd 
limited. Such authority and such rules are derived directly from 
the laws of war . . ." Dooley v. U. S . t 182 U. S., 222, 230-231, 
(1901) . 



17E. 



the conquest an enemy territory h^s been sufficiently completed 
to warrant or require the institution of e military government; end 
in the absence of Congressional action, he may likewise determine 
the duration of such military occupation and government 

The President may also determine the character o^ the 
government to be established over occupied territory; that is, he 
may, uncier the lews of war, set up such political institutions and 
create a government with such powers as he thinks best suited for 
carrying out the purposes of the military occupation. Thus, during 
the war with Mexico, President Polk, although he had instructed 
General Kearney to establish temporary civil governments in the 
regions conquered by him, disapproved and repudiated his action in 
organizing a government for Hew Mexico which gave to that region 
the status of a permanent territory of the United States and which 
recognized the inhabitants 8S United States citizens. 1 "^" 



8 Hornsby v. U. S .. 10 ..all., 224, 239 (1869). Occasionally 
attempts were mtde to set up a military government over territory 
not actus lly uiCer occupation end control. For example, Andrew 
Johnson was appointed military governor o^ Tennessee in March, 1862, 
when a considerable portion o - " the state vas still unconquered by 
the Union ^orces; and General Banks, remarking that "the city of New 
Orleans is in reality the State of Louisiana", ordered an election 
held in January, 1864, for governor and other officers ^or the en- 
tire state. See A. II. Carpenter, "Military Government of Southern 
Territory, 1861-1665," in Report. Am. Hist. Assn. 1900 , I, 465-496, 
esp. 477, 476. President LcKinley took for granted that the capture 
of Manila and the surrender the Spanish forces there "practically 
effected the conquest o^ the Philippine Islands*, and therefore, on 
Dec. 21, 1896, ordered the extension of the military government 
theretofore maintained only in the city o^ Manila to the entire 
archipelago. Richardson, op. cit . t X, 219. 

9 Neely v. iienkel , 160 U. S., 109, 124 (1901); Birkhimer, 
op. cit. , f:l, 366. 

10 Thomas, History of Military Government in Newly Acquired 
Territory q-' ? the United States , 101-102. 

11 Message to Congress, Deo. 22, 1846. Richardson, Messages 
and Papers o^ the Presidents , IV, 507; see also liary o^ James K . 
Polk , II, 282. For description of the government set up by Gen. 
Kearney in New Mexico, see Thomas, op. cit. , 103-105. 

1 



173. 



However, in spite this expressed disapproval o* the 
principle upon which the military government hed heen organized in 
Sew Hexico, the President apparently made no change In the machinery 
or institutions set up there by General Kearney. Moreover, he ex- 
pressed no disapproval of the similar territorial government organize 
in California by Commodores Sloat a no Stockton;- 1 -^ and certa inly- 
approved that established in Kerch, 1847, by General Kearney, which, 
although not a territorial government in name, in fact practically 
annexed California to the United States as permanent territory, the 

inhabitants having been absolved from ell allegiance to kexico and 

IS 

considered as citizens of the United States. 

During the Civil War, military governments were also es- 
tablished by the President in the occupied portions of the South, an<| 
his right to do so was upheld by the Supreme Court on the ground 
that the conflict, "though not between independent nations, but be- 
tween different portions o+ the same nation, was accompanied by the 
general incidents of an international war."-'- 4 In fact, one writer 
has well described the Civil 7<ar as "a broadening drama of military 
occupation, successive governments being established as the Con- 
federacy gave way.""*" 

The governments established were o* a peculiar character, 
however, in that they were not strictly military governments in the 



IE Thomas, op. cit . , 160-162, 165, 161. However, the Presi- 
dent was not aware Of the action taken in California when he sent hii£ 
message to Congress; and ^is disapproval of the Stockton government 
may be assumed from his ignoring that regime in Ms later instruc- 
tions to Gen. Kearney to take charge in California. 

13 Ibid . , 193-195. In October, 1847, the President expressed 
himself as favoring an open avowal that Hew Mexico and California 
should be retained by the United States, and that permanent terri- 
torial governments should be established. Diary o^ James K. Polk . 
ITI, 190. 97 U.S., 509, £17 (1676). 

14 Dow v. Johnson . 100 U.S. ,158,164 ( 1879 ) ;c J . Coleman v.Ten .^ 

15 Glenn, The Army and the Law , 97. 



174 



sense in which thet term is used in international lew, instituted 
to afford protection for the occupying- forces rnd e temporary autho- 
rity for the enemy inhabitants. -hey involved the creation o^ an 
office not hitherto knovm in American constitution law -- that of 
military governor; end they were instituted not for the ordinary 
purposes of a military occupation, but with the avowed purpose "to 
re-establish the authority of the Federal Government . . , and to 
provide the means of ma intaininr the peace and security to loyal 
inhabitants . . . until they shall be able to establish e civil 
government." 17 With this end in view, the old state governmental 
machinery ves gradually restored and placed in the hands of the 
loyal inhabitants of the occupied districts, new institutions were 
created where thought necessary, and new state constitutions, de- 
signed to be permanent, were required to be framed and adopted — 
all of which was upheld by the Supreme Court as a legitimate exer- 
cise of the President's power, under the laws of war, to institute 
military governments . ^ 

During- the Spanish-American War, military governments 
were, by order of President KcEinley, established in the -Philippines 



16 The "military governors" appointed during the Civil V/er 
were commissioned as such, and •. ere distinct from the commanding 
officer of the occupying forces. They were generally selected from 
civil li^e, but ^or the occasion rere given military rank, com .only 
that o" Brigadier General. Previous to this, no "military governor" 
had ever been appointed, the commanding officer of the occupying 
forces merely assuming the duties of governor by virtue of his rank 
as the superior officer in the territory concerned. 

17 Statement of Secretary o^ War Stanton, quoted by A. H. 
Carpenter, op. cit ., 476. 

18 "So long as the war continued it cannot be denied that he 
Bight institute temporary governments within insurgent districts, 
occupied by the national forces, or take measures, in any state, foi 
the restoration o* State governments faithful to the Uni-^n, employ- 
ing, however, in such efforts, only such means and such agents as 
were authorized by constitutional laws." Texas v. .Vhite . 7 Wall*, 
700, 730 (1868). 



175. 



in Porto Rico, end in Cuba, et first pretty strictly o* thi charac- 
ter contemplated by the laws and usages of military occupation; that 
is, merely temporary governments set up by the military commander 
for the protection of the occupying- forces and the security of the 
inhabitants. 19 In Porto Rico, however, some changes were made in 
the political and judicial system that were not required by military 
necessity, and the government is said to have been administered, 

even before the treaty of peace was eigned, "as though the island 

20 

were a permanent possession of the United States"; while the later 
anomalous government for the Philippines was presaged by the send- 
ing of a commission to the islands, appointed after the signing 
but before the final ratification of the treaty, with instructions 
to "study attentively the existing social and political state of 
the various populations, particularly as regards the forms of local 
government, the administration of justice, the collection of customs! 
end other taxes, the means of transportation, and the need of public 
improvements ." 

Having therefore the power, as Commander-in-Chief, to in- 
stitute such 8 temporary government for occupied territory as he may 
see fit, the President may also perform all the necessary functions 
of that government, whether executive, legislative, or judicial. ^ 
He has, in the ^irst place, complete control over the appointment 



19 See instructions of President LicKinley to the Secretary of 
V/ar, issued May 19, July 13, & Bee. 21, 1898. Richardson, op. cit .. 
X, 208-211, 214-216, 219-221. 

20 Thomas, op. cit .. 307. 

21 The commission consisted of Jacob G. Schurman, Admiral 
Dewey, Maj. Gen. Otis, Charles Penby, and Dean C. Worcester. See 
the President's instructions to the Secretary of State, Jan. 20, 
1899. Richardson, op. cit. , X, 22£ T 223. 

22 Cross v. Harrison , 16 How., 164, 190 (1853); Le it ensdorf er 
v. ' ebb , 20 How., 176, 177-178 (1857); The Grapeshot . 9 Wall., 129, 
133 ( 1869 ) ; Root, Military and ColonlslTolicy of The United States , 
252. 

: 



176. 



and removal of officers for that government. He may continue in 
office such of the local officials t s he sees fit, or he may remove 
them at his discretion end appoint a new set of officials, who, upon 
the sole authority o* the President, supersede the exist in? officials 
end administer the government under his direction. 

Thus, President Polk, in his instructions to General 
Kearney with regard to the governments to be established by him in 
New Mexico end Calif ornie, urged him "to continue in their employ- 
ment all such of the existing officers as are known to be friendly 
to the United States, and will take the oath of allegiance to 
them"; 23 and President McKinley similarly instructed the Secretary 
of War in 189G, that judges and other officials of justice in the 
occupied territories should continue in office, if they accepted 
the euthority of the United States and the supervision of the Ameri- 
can commander. He reminded the Secretary, however, that under the 
laws of war, "if the course of the people should render such mea- 
sures indispensable to the maintenance of law and order", the com- 
mander of the occupying forces had the power "to replace or expel 
the native officials in part or altogether, to substitute new 
courts 0° his own constitution for those that now exist, or to 
create such new or supplementary tribunals as may be necessary." 

In the military governments established during the Civil 
War, on the other hand, the power of removal was exercised exten- 
sively, beinp applied not only to public officials of low and high 
degree, such as state officers, judges, and mayors; but also to 
o*-"icers of semi-public and even private concerns, such as library 
officials, o^icers and professors at state universities, and of- 

23 Instructions of June 3, 1846. Thomas, Op. Pit .. 102. 

24 Richardson, op. cit ., X, 209-210, 215, 220. 



177. 



ficers of chambers of commerce. "where they were not removed, the 
offici8ls were "little more than f igureheads" , strictly subordinate 
to the military commender, end holding- their positions only by 
his permission. v 

The officials appointed may be either civilians or mili- 
tary persons, within the discretion of the appointing authority. 
Thus, the principal officials appointed by General Kearney in New 
Mexico were all civilians, including a governor, secretary, and 

three members the supreme court, although the duties of governor 

26 

were later performed by military officers; while in California, 
under similer conditions, the principal officials were military men 
under both the Stockton and Kearney regimes. The "military 

p-overnors" appointed by President Lincoln were all civilians, given 

op 

military rank for the occasion, and there seemed to be a conscious 
effort to fill most of the subordinate offices also with civilians. 
However, many o^ the commanding officers exercised the functions of 
8 military governor, by virtue o^ their rank, in the territory oc- 



25 A. H. Carpenter, op. cit ., 461. 

26 Charles Bent, appointed governor by Gen. Kearney, was killqd 
in an insurrection, Jan. 19, 1847. Secretary Vigil, who thereupon 
became acting governor, was appointed governor Tec. 17, 1847, by 
the military commander, Col. Trice, end served till Pec. 11, 1848, 
when the duties of "civil and military pov^rnor" were assumed by 
Col. J. M. Washington, by virtue of his rank as commanding officer. 
He was in turn succeeded Oct. 23, 1849, by Col. John Munroe, who 
Berved till the end of the military regime. Thomas, op. cit ., 115- 
116, 128. 

27 Col. John C. Fremont acted as rovernor for a short time 
tinder appointment from Stockton; while under Kearney the principel 
offices were filled as follows: governor, Col. P. B. Llason; secre- 
tary of state, Lt. H. W. Hslleck filter famous as a Civil War g-ene- 
rel'end as a writer on internat ionel lew); collector o^ customs, 
Cart. J. L. Folsom. Col. Lies on was succeeded by Brig. Gen. Riley, 
who served till the organization of the State government. Thomas, 
op. cit ., 181; Winthrop, op. cit ., 324-325. 

2~8 Andrew Johnson was commissioned military governor of Ten- 
nessee, with rank of Brigadier General; likewise John S. Thelps of 
Arkansas; Edward Stanly of llorth Carolina; end George F . Shepley 
of "Louisiana. 



178. 



cupied by the forces under their command. During the period of the 
war with Spain, President I.TcKinley pieced the military governments 
established by him in charge of the commanding officers and their 
military subordinates, gradually supplanting them with civilians 
after the United States h8d acquired permanent possession. 

Ihese powers of appointment end removal may be exercised, 
as has been noted, either by the President directly, or through the 
commanding officer or other subordinate with due authority in the 
occupied district. Usually the commanding officer assumes the du- 
ties of a military governor by virtue o^ his rank, without any 
special appointment as such. In other crses, as in the military 
governments established, in the South, a military governor was ap- 
pointed by the President for each particular occupied district, dis- 
tinct from the commanding officer in that region; while again, as 
in Uew Mexico and California, the functions of commanding officer 
end military governor have been performed, sometimes b^, different 
persons, sometimes by the same person. As a general rule, where the 
government is presumed to be strictly military in character, the 
President has le^t the appointment of the officials in active charge 



29 llaj. Gen. Wesley L. foerritt set ut a military government ir 
the city of Manila immediately upon its capture and occupation on 
Aug. 12, 189b, which military government was later extended to the 
whole archipelago by his successor, Mjrjt Gen. E. S. Otis, acting 
under the direct order of the President. Gen. Otis was succeeded 
on May 5, 1900, by Maj. Gen. Arthur Maclrthur, who was in turn suc- 
ceeded on July 4, 1901, by Maj. Gen. A. R. Chaffee. Porto Rico was 
occupied by forces under Gen. ITelson A. i^iles, July 25, 1896, but 
a military government was first formally established Oct. 18, by Mo J. 
Gen. John R. Brooke. He was succeeded on Dec. 9, 1898, by llaj. Gen. 
G. V. Henry, and on May 9, 1899, by jdrig. Gen. G • W. Davis. In Cub?i|, 
a formal military government for the whole island does not appear t<i 
have been s«t up till Tec. 13, 1896, when a Division of Cuba was 
created, with l£aj. Gen. Brooke as commander and military governor. 
He was succeeded in Dec, 189V, by Ifej* Gen. Leonard Wood. 



179. 



to the commending officer, who may even then select either civilians 
or military persons. Thus, when Secretary Vigil became acting 
governor in New Mexico after the death of Governor Bent, and be- 
sought the Washington authorities to appoint a successor, Secretary 
of V/ar Marcy replied thet the government being purely military, the 
appointment of a governor would be left to the commanding officer 
(Colonel Price). 30 

V/hile the President's power with regard to the government 
of occupied territory is therefore justly said to be "necessarily 
despotic", it has been held that this applied onlv to his executive 
or administrative power, and not to his power to legislate for that 
territory. "His power to administer would be absolute", says the 
Supreme Court, "but his power to legislate would not be without 
certain restrictions in other words, they would not extend beyond 
the necessities the case."^- However, it seems to be within 
the power 0* the President, as Commander-in-Chief, to judge of the 
"necessities the case", hence the restriction amounts in practice 
to very little. 

The President has the power, directly or through his sub- 
ordinates, to issue orders ^or the government 0^ a. conquered terri- 
tory, at least until Congress hes acted, and these orders have the 
force of lew,"' Although definite affirmative action on the part 
of the President or the military commander is required in order to 
change the local municipal law 0" the conquered territory, he may, 
if he thinks necessity demands such a step, abolish entirely the 
laws of that territory and substitute laws and regulations of his 

30 Thomas, op. alt *, 123. 

31 Jooley v. ' U. | T, 182 U. S., 222, 234 (1901); cf. Moore' s 
Digest . 271; Raymond v. Thomas , 91 U. S., 712, 716 (1675). 

32 Cross v. Harrison, 16 How., 164, 190 (1853). 



180. 



own making, or he may supplement the local municipal lew with such 
regulations as he may deem necessary and proper. 33 

President Polk in 1846 thus defined the principles to 
which the laws adopted for a conquered territory should conform, 
when he declared to Congress that "such organized regulations as 
heve "been established in any of the conquered territories for the 
security of our conquest, for the preservation o^ order, for the 
protection of the rights of the inhabitants, and for depriving the 
enemy of the advantages of these territories while the military pos- 
session of them by the forces of the United. Ststes continues, will 

rzA 

be recognized and approved." Accordingly, although at that time 
he disapproved the attempt to p-ive Hew Mexico the status of a perma- 
nent territory of the United States, as has been noted, the Presi- 
dent apparently accepted and approved the action of General Kearney 
in adopting an organic law for that region, copied from the organic 
18W of Missouri Territory, ^ and in putting into effect numerous 

other lews, compiled from neighboring state and territorial laws and 

36 

from the laws of Mexico.* In California, on the other hand, the 
legislative council established under the Stockton government was 
ignored and omitted in the government set up by General Kearney un- 



33 "Until he acts, it is presumed that he intends to leave it 
of full effect." Glenn, The Army and the Lew . 101, n. ; Coler.rn v. 
Tennessee . 97 U. S., 509, 517 (1878); President McKinley, in 18^ , 
ordered that the rule of international law which required that the 
municipal law o^ the conquered territory should be considered as 
remaining in force, so far as compatible with the new order and un- 
til suspended or superseded by the occupying belligerent, be ad- 
hered to as far as -possible. Richrrdson, op. cit .. X, 209. Cf . 
7/inthrop, op. cit. . 323; Davis, Treetise on the Ijlitary Lav: of the 
United Ste J es. 300-301. 

34 Message of Lee. 22, 1846. Richerdson, op. cit *. IV, 507. 

35 It tos, ^or example, under the provisions o^ this "orp-anic 
law" that Secretary Vigil Vceme acting governor o^ Hew Mexico upon 
the death of Governor Bent in January, 1847. 

36 Thomas, op. cit ., 103-105. 



161. 



der instructions from the President , ^ 7 en £ the orders o* the mili- 
tary governor therefore continued there to be the only source of lew. 

In the occupied districts o 4 * the South, elections were con- 
ducted under regulations prescribed by the military governor, con- 
ventions were held under his supervision, and the const itvt ions and 
governments created thereby were inaugurated under his authority. 
For example, General Banks ordered an election held in Louisiana 
in January, 1864, for governor and other officers, with the regula- 
tion that those entitled to the rights of United States citizens 
would be required to ve rt icipate , "indifference" to be treated as 
a crime and "faction" as treason. Governor Shepley, in the same 
state, later ordered an election for delegates to a constitutional 
convention, for which he decreed the registration of all loyal citi- 
zens, determined the ratio of representation in the convention, and 
supervised the registration and election officers in their work. In 
Arkansas, elections held under the revised constitution were set 
aside under authority from President Lincoln, new elections were 
held, and new officers inaugurated; while in Tennessee also, the 
confirmation and approval of the military governor was apparently 

necessary, not only for the holding of elections, but in order that 

38 

persons duly chosen might act. 

This military supervision and control elections extendei. 
durinr the Civil '.iar even to the occupied districts in the border 
states which were, strictly speaking, not subject to military govern 
ment and whose constitutional rights were pronounced as "theoretical 
ly equal to the rest o* the Union". Thus, in various places in 
Kentucky orders and proclamations were issued by the military autho- 



37 Thomas, op. cit. , 181. 

38 km H. Carpenter, op. cit ., 478, 462. 



182. 



rities, by which army officers were required to see that none but 

i 

loyal persons voted or were candidates at the elections, or acted 
as election officers: in Missouri "voting contrary to orders" was de- 
clared to be a military offense: and in Maryland provost-marshals 
were ordered to "assist" election judges in administering the oath 
of allegiance 8nd in reporting those who failed to carry out the 
regulations. "In this way the military became the judge and in- 

^1 k AM I 

terpreter of the civil authorities and even o^ the laws themselves? 

The President may likewise exercise complete control over 

the municipalities within the occupied territory. He may, through 

the proper subordinates, "change or modify either the form or the 

constituents of the municipal establishments; may, in pl^ce of the 

Bystem and regulations that formerly prevailed, substitute new and 

40 

different ones." Thus, during the Civil Y*er, this municipal 
control extended to the founding of courts, legislation concerning 
property, the establishment of bureaus in charge of various city 
activities, the enforcement of a system of licenses, the appoint- 
ment and removal of officials, the creation of police forces, and 
the censorship o - " newspapers . ^ 

Numerous other powers with regard to the government of 
occupied territory that are legislative in character may also be 
exercised by the President. He may provide the finances necessary 
for the support of the occupying forces and the expenses of the ad- 
ministration of the territory by the levying of military contribu- 
tions, the collection of the regular taxes, end the imposition of 

39 A. H. Carpenter, op. cit ., 482-483. 

40 Attorney-General Gripes to the Secretary of 7/er, July 10, 
1898. £2 Op. Atty . Gen . . 527, 528. 

41 A. F. Carpenter, op. cit ., 493-496; cf. Garner, Reconstruc - 
tion in Mississippi. 38. 



J 



183. 



42 

customs duties, his judgment as to the propriety of such measures 

43 

being necessarily arbitrary end absolute. He may likewise pro- 
mulgate measures for the regulation of trade and intercourse with 

44 

the occupied territory; establish and maintain telegraph and 

railroad lines, evn though their business conflict with the vested 

45 

riphts of private companies; grant licenses and enter into contracts 

whose provisions are binding even after the termination the 

46 47 
military occupation; and restrict the right of private ownership. 

The judicial powers o^ the President in occupied territory 

are also extensive. He has complete control over the establishment, 

jurisdiction, and functioning of the military courts, such as 

48 

courts-martial, provost courts, and military commissions. In ad- 
dition, the President may exercise supervision over civil courts 

49 

already in existence, or he may create such civil courts as he 
deems necessary, displacing or supplementing those already existing. 
Thus, in New Mexico General Kearney established a complete judicial 
system, consisting of a superior or appellate court and district 



42 Lawrence, Principles o e International Law . 445; Pachardson, 
op. cit .. IV, 5^0-572. 672-676; Winthrop. op. cit ., 326; Dooley v . 
U. S.. 182 U. S., 222, 231-233 (1901). For view that the President 



does not have these powers, see Kent's Commentaries. I, 292, quoted 
in 1'oore's Digest . VII, 270. 

43 Dow v, Johnson. 100 U. S., 158, 165 (1879); Herrera v. U.S. , 
222 U.S., 558, 571 (1912). Luring the Mexican '.Var, President Polk 
st first rave Scott and Taylor discretionary authority to exact 
contributions, but neither having done so, he later made his orders 
"peremptory and stringent" that such exactions should be made . Liary 
of James K. Polk , III, 156. Gen. Scott is said to hrve collected 
contributi6ns about $22,000 from 19 Mexican states. Winthrop, op . 
cit. . 326. 

44 Birkhimer, op. cit ., 272; riemin^ v. Page , 9 How., 603, 615 
(1849); cf. A. H • Carpenter, op. cit .. 489-493. 

45 23 Op. Atty. Gen ., 425; Llagoon's Reports . 391-407. 

46 New Orleans v. Steamship Company , 20 all., 387, 394-395 
(1874); 23 Op. Atty. Gen. , 551, fcbtf-&63. 

47 Moore's Digest , VII, 264; For. 3el. 1901 . App., 97. 

48 Supra , ch. VITI. 

49 See A. II . Carpenter, op. cit .. 484-485. 



184. 



courts, and defined their jurisdiction. 

During the Civil 7Var, provost courts "-ere established by 
the military commanders in New Orleans end elsewhere, with civil 
end criminal, as well fs military jurisdiction, and supplanting- in 
many esses the lower state courts snd the local police courts. 
President Lincoln himself, by executive order of October 20, 1862, 
created a provisional court for Louisiana, which has been described 
as "the Alphe and Omeg-a o^ justice f or Louisiana". In this order 
the President appointed the judge (Charles A. Peabody), and gave 
the court jurisdiction over "all causes, civil and criminal, includ- 
ing cases in law, equity, revenue, and admiralty, and particularly 
ell such powers and jurisdictions as belong to the district snd 
circuit courts of the United States". He also prescribed the rules 

procedure; mace the decisions o 41 the court "^insl and conclu- 
sive", with appeals forbidden; f~nd vested in it the power to ap- 
point the prosecuting attorney, marshal, and clerk. while the state 
lews in force were to be administered by this court "8S far as pos- 
sible", the orders o^ the military commanders were recognized as 

51 

of "paramount authority". 

All of these acts of the President were upheld by the 
Supreme Court in several decisions,*" snd his power, as Commander- 
in-Chief, to orpanize and practically to control the judiciary in 

.. 50 *Vinthrop, op. cit .. 525. 

51 A. H. Carpent er , p. c it . , 485-466. 

52 Leitensdorfer v. 7. ebb , 20 How., 176 (1857); The Grspeshot . 
9 Well., 129 (18 69) ; Burke TTlait enb°rge r . 19 Wall., 519 (1873); 
Mechanics Bank v. Union Bank , 22 .all., 276 (1174). 



185 



territory under military occupation, was clearly affirmed," with 
only the limitation thst neither the President nor eny military corn- 
mender can establish a court in such occupied territory to adjudi- 

54 

cate prize esses or to administer the law of nations. 

Since all the powers and functions of military government 
are therefore concentrated in the hands of the President, with 
scarcely any limitation, it would not seem to be an exaggerst ion to 
characterize such government as "an absolutism of the most complete 
sort." 65 



55 "Yn'hen enemies' territory is occupied, or territory to 
which the rules of law assign th.^t name, though it be that of a 
State of the Union, the President can replace its courts by courts 
of his own, exercising both civil and criminal jurisdiction, and 
disposing of life, liberty, end property, not as instruments of the 
judicial authority of the United States, but as instruments of the 
executive authority." Baldwin, Updern Political Institutions , 103. 

54 Jeoker v. Montgomery . 13 How. , 498 , 515 ( 1851 ) . 

55 A. H. Carpenter, o-p. cit .. 496; V. illoughby , On the Consti - 
tution . I, 390. 



III. CIVIL POWERS IN TIME OF WAR. 



187. 



Chapter X. 
Control of Administration * 

It has been pointed out by a distinguished authority how 
the original American conception of executive power was to the ef- 
j f ect that the President had been vested with military and political, 
rather then administrative power; and further, how that conception 
has changed, so that now the President is generally recognized, 
through powers conferred by statute and derived from the Constitu- 
tion itself, as "not merely the political head of the United States 

national government but as well the head of its administrative 
„1 

syst em. 

This position of the President naturally becomes especial- 
ly important in time of war, when the exigencies of the situation 
require the creation of additional governmental agencies and a 
vast expansion in the general field of administration. Through 
his constitutional powers of appointment, removal, supervision, and 
direction, the scope of the President's administrative authority 
is at such a time automatically extended, if his specific powers 
are not actually increased. 

In addition, Congress at such a time is inclined to recog- 
nize the wisdom of Hamilton's arguments for a vigorous and unified 

2 

Executive, and to entrust exceptional administrative control to 
the President. That is particularly true with regard to adminis- 
trative agencies created to meet the special military needs of the 
country. Thus the actual administration of the Lraft Acts of the 



1 Goodnow, Principles of the Administrative Law in the United 
States , 73-82. 

2 See The Federalist, Ho. 69 ( 70 ) , ( Goldwin Smith ed. ,p. 386ff . ) 



Civil War was given over to the President, although hedged about 
with such an amount of statutory detail as to leave him with lit- 
tle discretionary authority. The work of administering the pro- 
visions of the draft was carried out through a Provost Marshal Gene- 
ral, and through enrollment hoards, one for each district into which 
the United States was divided. Each such board was to be composed 
of the provost-marshal for the district, a licensed physician, and 
one other person, to be appointed by the President. Their duties, 
horever, were definitely defined by statute, hence the President's 
authority was principally such as resulted from his control over 
the personnel of the administrative machinery and from his general 
powers of supervision. 

4 

The Selective Service Act of the recent war went much 
further in entrusting the President with large powers of administra- 
tion. The act provided for the registration of all male persons 
between the ages of 21 and 30 (later extended to include all between 
the ages of 18 and 45^), but geve the President complete authority 
to designate the time and place for such registration, and to pre- 
scribe the rul<=s and regulations in accordance with which it should 
be held. Under this provision, President Wilson issued no less 
than thirteen separate proclamations, designating the various times 
end places for the registration. He likewise issued detailed regu- 



3 Acts of Mar. 3, 1863, Feb. 24, 1864, & July 4, 1864. 12 
Stat, at L. . 731; 13 ibid ., 6, 390. 

4 Act of May 18, 1917. Public No. 12, 65 Gong., in Wigmore, 
Source-Book of Military Law and War-time Legislation , 460-468. 

5 Act of Aug. 31. 1918. Public No. 210. 65 Cong. . Ibid . , 471-474. 

6 Proclamations of May 18, June 27, June 30, July 2, 1917; May 
20, June 11, June 17, June 18, Aug. 13, -Aug. 31, Sept. 18, Oct. 10 
(2). U.S. Stats . .65 Cong. , lSess ., Proclamations , 20 , 30, 35, 36 ; ibid. , 2 
Sess., 137, 149, 152, 155, 190, 196, 207, 212, 216. So many proclamations 
were issued for the reason that different registration dates were 
designated for the various parts of the territory of the United 
States. Thus June 5, 1917, was named as the first registration day 
in continental United States (except Alaska), July 5 in Porto Rico, 



189 



lations for the execution of the registration provisions of the act. 

These regulations created an administrative system, con- 
sisting of the Provost Marshal General as the chief administrative 
officer; the governor and adjutant general of each state as his 
principal assistants; a board of registration for each county or 
corresponding subdivision, consisting of three members named by the 
governor (or by the mayor in cities of over 30,000 population), none 
of whom were to be in any way connected with the military establish- 
ment; and one or more registrars for each voting precinct. These 
Presidential regulations further defined the jurisdiction and duties 
of these various officials in connection with the registration; 
prescribed the compensation of the registrars; and outlined in detai! 

i 

the forms and methods under which the registration should take 
7 

place . 

The local administration of the conscription provisions of 
the Selective Service Act was carried out through local and district 
boards, appointed by the President; the former, one for each county 
or corresponding subdivision, consisting of three or more members, 
none of whom was to be connected with the military establishment; 
the latter, one or more for each Federal judicial district, com- 
posed of such number of members, likewise civilians, as the Presi- 
dent might determine. The duties of these boards were outlined in 
the act; but the President was authorized to prescribe the rules 
and regulations under which the boards should operate, to make 
rules and regulations governing their organization and procedure, 

July 2 - Sept. 2 in Alaska, and July 31 in Hawaii; similarly with re 
SDect to the days later named under the amendatory acts of 1918. 

7 See Registration Regulations , issued as a separate pamphlet 
by the Government Printing Office, 1917. 

8 As a general rule, the Registration Boards were reconstitu- 
ted the Local Boards. 



190. 



and to make "all other rules and regulations necessary to carry 

9 

out the terms and provisions of this section." 

Accordingly, President Wilson j on June 30, 1917, issued 
(regulations, describing in detail the organization, duties, and 
llprocedure of the local and district boards; 10 and on November 8, 
1917, further regulations, covering in detail the jurisdiction of 
the o^icial boards and auxiliary organizations, the rules and 
principles governing the classification of the men, the process of 
selection, the procedure of induction and mobilization, forms to be 
observed, and the like. 1 "*" The boards were subject to the immediate 
supervision of the Provost Marshal General and, finally, of the 
President, who was empowered to "affirm, modify or reverse" any 
decisions made by them. It is thus clear that while the adminis- 
trative machinery of conscription was provided for and barely out- 
lined by statute, its creation, supervision, method of operation, 
and control were in the hands of the President. 

With regard to the field of general administration, no 
additional powers of importance were given to the President in pre- 
vious wars, beyond his ordinary powers of supervision and direction 
over the various executive departments and agencies. On the other 
hand, something was done during the Civil War to provide a Congres- 

9 Selective Service Act, Sec. 4, Wigmore , op.cit . ,463-465. 

10 Rales end Regulations Prescribed by the President for Local 
i and District Boards , issued by the Government Printing Office, 1917 . 

11 Selective Service Regulations . A second edition of these, 
I revised and enlarged, W8S issued Sept. 16, 1918, in which wae in- 
cluded, for example, the famous "work or fight" rules. It is worthy 
of note that the Selective Service Act itself covers only 8 pages; 
while the Registration Regulations constitute a pamphlet of 30 
pages, the Rules and Regulations for Local and District Boards one 
of 84 prges, and the two editions of the Selective Service Regula- 
tions booklets of 254 and 432 pages, respectively. 



191. 



sionel check on the President's administration of the war through 

the committee of Congress known as the Joint Committee on the Con- 
IE 

duct of the War. 

The nature and extent o^ the recent world war, however, 
called for the creation of numerous new administrative agencies, 
and it is worthy of note that Congress, in providing for these, in 
almost every instance gave the President blanket authority to work 
out the administrative details -- to create the necessary offices, , 
to prescribe the character of their organization, and to determine 
upon the administrative methods to be used. Thus, the Espionage 
Act, although providing for the control of exports from the United 
States, created no administrative agency to exercise suoh control, 
but merely specified that the export trade be carried on "under 
such regulations find orders, and subject to such limitations and 
exceptions as the President shall prescribe." 

Likewise, the Food and Fuel Control Act set up no adminis- 
trative machinery, but authorised the President "to make such regu- 
lations and to issue such orders as are essential effectively to 
carry out the provisions of this Act", and further, "to create and 
use any apency or agencies, . ."for the same purpose." 1 " 4 The Trad- 
ing with the Enemy Act provided for the regulation and control of 
trading with an enemy or ally of enemy and of the import trade, and 
for the censorship of foreign communications and foreign-language 



IE Hosmer, The Appeal to Arms , 80. During the recent war, an 
attempt was made to set up a similar committee. The Senate 8dded a 
provision to the Food and Fuel Control bill, establishing a joint 
committee on war expenditures to be composed of 5 Senators and 5 
Representatives, "to safeguard the expenditure the appropriations 
bearing upon the war as made by Congress". The vigorous protest of 
President Wilson against the embarrassment of such a committee force! 
its abandonment in conference. Pol. Sc i . Qua r. , XXXII , Supp.,37,38. 

13 Act o^ June 15, 1917 (Title VII, Sec. 1). Wigmore , op. cit . ,4f|3 

14 Act of Aug. 10, 1917 (Sees. 1 & 2). Ibid . , 504. 



192. 



publications, but empowered the President to "exercise any power or 
authority conferred by this Act through such officer or officers as 
he shall direct"; 15 while the Railway Control *ct provided, "That 
the President may execute any of the rowers herein end heretofore 
granted him with relation to Federal control through such agencies 
as he may determine . . ," 16 

By virtue of these provisions, President Wilson vested the 
executive administration of his instructions end proclamations con- 
cerning the export trad« in the Secretary of Commerce, and estab- 
lished an Exports Council, composed of the Secretaries of State, 
Agriculture, end Commerce, and the Food Administrator, 1 ? "to direct 
exports in such a way th8t they will go -^irst and by preference 
where they are most needed end most immediately needed, and tem- 
porarily to withhold them, if necessary, where they can best be 
spared. nl ° As the administrative agencies for carrying out the pur- 
poses of food and fuel control, the President created the Food and 
the Fuel Administrations and the United States Grain Corporation; 
to administer the provisions of the Trading with the Enemy -^ct con- 
cerning censorship and the regulation of imports, he set up the Cen- 
sorship Board and the .Ver Trade Board; 20 while for the administra- 



15 Act of Oct. 6, 1917 (Sec. 5a). Wlgmore. op. olt . , 548. 

16 Act 0* Mar. 21, 1918 (Sec. 8). Ibid . . 56TT. 

17 Executive order of June 22, 1917. Official Bulletin . 
June 26, 1917. 

18 Statement of President Wilson. Ibid . By executive order 
of Aug. 21, 1917, the Exports Council fti enlarged by adding the 
Chairman o** the Shipping r=oard, and continued as an advisory body; 
but superseded in its control of exports by the Exports Administra- 
tive Board, composed of representatives of the Secretaries of State, 
Agriculture, and Commerce, the Food Administrator, and the Shipping 
Board. 7/illoughby, Government Organization in far Time and After, 
128 ; V/er Cyclopedia (1st ed. ), 90. 

T3 Infra , 222-257. 
20 Infra . 228, 239. 



tion of the railroads, he established the Railroad Administration, 
with Secretary the Treasury iicAdoo as Director General of Rail- 
roads. 21 

Of all the important administrative agencies established 

during the recent war to carry on some phase Of v/ar activity, very 

22 

few were expressly created by statute, Congress thus apparently 
recognizing the importance of entrusting the details of war adminis- 
tration to the President. On the other hand, several war agencies, 
such as the Committee on Public Information and the V/er Industries 

Board, were created by the President without authority of statute, bu 

23 

by virtue of his powers as Chief Executive and Commander-in-Chief. 

The establishment o -0, all these new administrative agencies 
for the carrying on of particular war activities, as well as the 
tremendous expansion in functions and personnel of the departments 
and agencies already in existence, soon raised the problem of how to 
avoid duplication and waste and provide for the proper coordination 
of effort. It finally came to a point where, in the words of Sena- 
tor V.'adsworth (Uew York), "It must be apparent to every sensible 
man that it is utterly impossible to get any teamwork out of this 
conglomeration of ambitious and scattered agencies, official and 
unofficial, unless we create some agency that shell guide and con- 

21 Infra . 245-247. 

22 The Alien Property Custodian was thus created by law. See 
Trading with the Lnemy Act (Sec. 6). Wigraore, op. cit. . 546-549. 
See infra , 242-243. Other administrative agencies of particular 
importance during the war, such as the Council of National Defense, 
the iVar Risk Insurance Bureau, and the Shipping Board, were ex- 
pressly created by statute, but before the United States entered 
the war and not anticipating that event. For an account o^ the 
work of the first two o^ these, see Willoughb,, , G-ovornment Organi - 
zation in V/ar Time and After. 9-21, 339-351; for that of the Ship- 
ping Board in relation to this study, infra . 247-246. 

23 Infra . 223-224, 240-241. 



194 



trol them ell in those matters in which teamwork is essential for 

24 

the accomplishment of greet results." 

This general feeling culminated in a proposal by Senator 
Chamberlein (Oregon), approved by the Senate Committee on Military 
Affairs, for a war cabinet , to be composed of "three distinguished 
citizens of demonstrated ability," who were to be appointed by the 
President with the consent of the Senate, and through whom the Pre- 
sident was to exercise "such of the powers conferred upon him by 
the Constitution and the laws of the United States, as are herein- 
after mentioned and described." This war cabinet was to have com- 
plete jurisdiction and authority to initiate pl8ns and policies for 
the prosecution of the war; to direct and procure the execution of 
these plans and policies; and "to supervise, coordinate, direct, and 
control the functions and agencies of the Government, in so far as, 
in the judgment of the war cabinet, it may be necessary or advisable 
so to do for the effectual conduct and vigorous prosecution of the 
exist in? war." The war cabinet was further to be authorized to make 
the rules and regulations governing its own procedure; to require 
information from and utilize the services of any or all executive dej 
partments, agencies, and officials of the United States and of the 
several states; and to make all the orders and decisions necessary 
to carry out these provisions. Besides the right to name its mem- 
bers, the President was to be given over this war cebinet, only e 

25 

very limited power of review. 

The bill thus proposed to confer powers under which this 



24 Speech in U. S. Senate, Feb. 5, 1918. Cong. Record , 65 
Con?., 2 Sess., 1869. See also charts, included in the eddress, 
showing the orgenizetion and proposed reorgenizat ion of the war- 
me Vine- machinery. Ibid . , 180e-1610. 

25 The war cabinet bill was introduced by Senator Chamberlain,, 
Jan. 21 1918. See text of bill in Cong. Record , 65 Cong. ,2 Sess . , 1077-1$ 78 



195. 



new war cabinet, as one Senator said, "could take absolute charge 
of the conduct of the war. The President would not have the autho- 
rity to initiate or formulate any plans or policies for its prose- 
cution. His power as Commander- in-Chief would be destroyed. He 

2 6 

would be subject to the orders of the War Cabinet'.' President 

Wilson therefore vigorously opposed this proposal, saying that it 

"would involve long additional delays and turn our experience into 

27 

mere lost motion", and instead he secured the introduction, and 
finally the paesage, of a bill containing his ideas for meeting the 
situation. 28 

This so-called Overman Act authorized the President "for 
the national security and defense, for the successful prosecution 
of the war, for the better utilization of resources and industries, 
for for the more effective administration by the President of his 
powers as Commander-in-Chief of the lend and naval forces", to make 
such redistribution of functions among the executive agencies as 
he might deem necessary; to utilize, coordinate, or consolidate any 
existing executive or administrative agencies; to transfer any 
duties or powers, together with any portion of the personnel and 
equipment, from one such agency to another; and to make whatever 
regulations and issue whatever orders might be necessary to carry 
out these provisions. The President was further authorized to es- 



26 Senator Shields, in U.S. Senate, Apr. 22, 1918. Cong. Record . 
65 Cong., 2 Sess., 5836. 

27 Statement of Jan. 21, 1918, quoted in Am. Pol. Sci. Rev . . 
XII, 377 (Aug. 1918). 

28 The administration bill was introduced by Senator Overman, 
Feb. 6, 1918, and became law May 20, 1918. Senator Overman stated 
very frankly: "The bill was advocated by the President and sent to 
me by the President, and I have no hesitation in saying so." Cong . 
Record . 65 Conp.,2 Sess. , (Apr. 3, 1918) ,4883. The fight between the 
ad^ocptes of the Overman Bill and Senator Chamberlain's War-Cabinet 
bill, and the probable motives behind the latter, are described by 
J. M.Leake. " Th e Con flict over Coordination? in Am. Pol. Sci. Rev. XII 
368-380 (AuT.~19l8T. = — = *= 



196. 



tablish an executive fluency for exercising- such control over the 
production of aeroplanes and aircraft equipment as he might con- 
sider advantageous. He had. no power, however, to abolish any 
"bureau or eliminate its functions altogether, but was authorized to 
make such recommendations to Congress in that regard as he might 
deem proper. Moreover, the act was strictly a war measure, in that 
it was expressly provided that the authority granted was to be exer- 
cised "only in matters relating to the conduct of the present war"; 
and further, that the act was to remain in force no longer than "six 
months after the termination of the war by the proclamation of the 

treaty of peace", all executive agencies and functions at that time 

29 

reverting to their former status under existing law. 

The President was thus, by the terras of this act, given 
complete control over the administrative machinery of the nation as 

rzr\ 

used for the purposes of the war. The act met with considerable 

opposition as an unwarranted and dangerous extension of the Presi- 
31 

dent's power; while at least one distinguished authority held 
th8t it was entirely unnecessary, claiming that the President already 
had full constitutional power to make such transfers of functions 
end consolidations of agencies on his own initiative. "I think," 
said this former Attorney-General and Secretary of St8te, "the 
President has the authority to require <^very executive officer and 
every department o 47 the Government to do anything tnat ne airecoa 
to be done in order to prosecute this war. to a successful conclu- 
sion. I think he has the power to delegate from one Cabinet officer 

29 See text o^ act in Wigmore, oio. cit ., 586-587. 

30 See 8n excellent summary by Senator Fletcher of whet might 
be accomplished under this act. Cong. Record , 65 Cong., 2 Sess. 
(Apr. 22, 1918), 5842. 

31 Especially from Senators Cummins (Rep.), 8nd Reed and Hoke 
Smith (Dems. ) . 



197. 



to enother the discharge o-f any particular duty that he thinks such 
a Cabinet officer can discharge better than the one upon whom it 
would normally be incumbent. I do certainly think that the President 
has all those powers. . . As I have read the Overman bill, in so 
far as it proposes to authorize the President to utilize end coordi- 
nate executive agencies, . . I would not hesitate a second to ad- 
vise the President of the United States that he now possesses that 
power." 32 

The majority in Congress felt, however, that the act was 

not only justified in order to avoid the suspicion or necessity of 

the President setting himself up as a dictator and doing the same 

33 

things without definite authority o^ law, but also that it was 
necessary to secure the proper coordination of effort on the part 
of the agencies entrusted with carrying on the various war activi- 
ties of the government, and was not to be considered as warranting 

^ 34 
any abuse of power by tie President. 



32 Senator Knox (Rep.), in U. S. Senate, Apr. 3, 1918. Cong . 
Record, 65 Cong., 2 Sess., 4898; see also ibid . , 4903, A leading 
journal also held that the President's power over administration was 
practically absolute, and that if he had exercised this power, it 
would probably not have been questioned in Congress or by public 
opinion. It said, however, that the Overman Act "would dramatize 
the President's powers so effectively that no one could question 
them." The IJation , May 4, 1918. 

33 See Senator Harding's suggestion concerning the need of a 
dictator. Supra , ch. I, note 29. Senator Overman frequently empha- 
sized the point that instead of exercising questionable powers with- 
out authority of law, as was done by President Lincoln, President 
Wilson had been careful to ask Congress for specific authority to 
exercise such necessar; powers. 

34 Senator Nelson (Rep.) probably best expressed the sentiment 
of the majority when he said: "This opposition is founded on the 
assumption that the President from first to last will do nothing but 
wrong; that he/will discontinue and dismantle all the departments in- 
stead of the proper assumption that he will utilize them to t ie best 
of his ability to carry on the war successfully. . . In order to car- 
ry on the transportation of food and supplies to Euro-ne it is neces- 
sary to have all these branches of the Government function and work 
together. That is ell there is in this bill, and there is no use of 
slandering it." Cong. Record, 65 Cong., 2 Sess. (Apr. 3, 1918 ) ,4886 . 



198 



Moreover, there were several precedents for granting- such 

authority as was done by the Overman Act. An act of February 14, 
35 

1903, had authorized the President "to transfer at any time the 
whole or any part of any office, bureau, division, or other branch 
of the public service engaged in statistical or scientific work from 
the Department of State, the Department of the Treasury, the Depart- 
ment of War, the Department of Justice, the Post Office Department, 
the Department of the Navy, or the Department of the Interior, to 

36 

the Department of Commerce and Labor". The Act of April 28, 1908, 
authorized the President "for any special occasion" to transfer to 
the head of another department certain authority conferred upon the 

an 

Secretary of Commerce; the Act June 24, 1910, ' authorized the 
Secretary of the Navy, with the approval of the President, to trans- 
fer the duties of the Bureau of Equipment to the other bureaus 
and offices of the Navy Department "in such manner as the Secretary 
of the Navy shall consider expedient and proper"; while by the Act 
of March 3, 1917,^® the Bureau of Efficiency was required to inves- 
tigate duplication 0* service in the various executive departments 
and establishments of the Government and make a report to the Presi- 
dent, who was authorized, "after such report shell have been made 
to him, whenever he finds such duplications do exist, to abolish 
the same." Apparently there was no exercise of the power authorized 
by this last-mentioned act, for the reason that the Bureau of Ef- 
ficiency was employed during the war to devise a system for the worl: 
o^ the 7/ar-Risk Insurance Bureau and hence had never been able to 

35 32 Stat, at L . , 830 (Sec. 12). 

36 35 ibid . , 69 (sec. 3) . 

37 36 ibid. , 613. 

38 39 ibid . , 1122 (sec. 8). 



199. 



29 

make the required report to the President. 

In addition to the statutes above mentioned, others have 
been passed applicable to emergencies only, under which the Presi- 
dent is authorized at such times to transfer important functions 
and services. Thus he is empowered, in time of threatened or actual 

a 

war, to utilize the Public Health and Marine hospital Service to 
such extent and in such manner as shall, in his judgment, promote 
the public interest"; the Coast Guard, ordinarily a branch of the 
Treasury Department, may be transferred to the Navy, "in time of 
war or when the President shall so direct"; and the vessels, equip- 
ment, stations, and personnel of the Lighthouse Service and the 
Coast and Geodetic Survey are subject to transfer by the President 
to either the War or Wavy Department, "whenever in his judgment a 
sufficient national emergency exists." Numerous acts relating to 
transfers of employees and officials within the Civil Service have 
long been on t" r e statute-books; so also regarding the detail of 

military and naval officers to service with other departments or 
40 

agencies. 

The Overman Act, while going considerably further in its 
grant of power than anything before enacted, was therefore not en- 
tirely novel in its essential principles, especially when considered 
as a purely war-time measure. Its rassage, however, aroused con- 
siderable speculation as to the probable action of the President 
under its authority. Suggestions were thrown out of possible radi- 
cal changes, such as the setting up of a "War Super-Cabinet" or war 
council, to consift of such Cabinet members and heads of newly es- 



39 See Conp. Record . 65 Cong., 2 Sess.Upr. 3, 1918), 4891. 

40 See complete list o° such acts in ibid. . 4901. 



200 



tablished bureaus as were more immediately concerned with the con- 
duct of the war. Others did not look for any great changes, hold- 
ing that the Overman Act was to he considered "more as a resource, 
to be ready at hand as need arises, . . . more as a club than any- 
thing else, to bring about better team work, and thus to increase 
efficiency . " 4 ^ 

As a matter of fact, no startling changes, transfers, or 
consolidations were made by the President as a result of the Over- 
men Act, and in no way was the regular Cabinet superseded, or the 
position of any of the executive departments in the field of adminis 
tration impaired. President Wilsoon's first order under the autho- 
rity of this act, issued on the very day the act- went into effect, 
was perhaps one of the most important. This order provided for the 
reorganization of the Air Service, which, as a part of the Signal 
Corps of the Army, had up to this time been under the direction 
of the Chief Signal Officer. 

The powers and functions of that officer were now redis- 
tributed as follows: (l) The Chief Signal Officer was left in 
charge of telegraph and telephone operations. (2) A Director of 
Military Aeronautics was created and placed in charge of the Avia- 
tion Section of the Signal Corps, with the duty of "operating and 
maintaining or supervising the operation and maintenance of all 
military aircraft, . . . and of training officers, enlisted men, 
and candidates for aviation service in matters pertaining to mili- 
tary aviation;" and to that end there was transferred to his juris- 
diction evry function, power, and duty of the Chief Signal Offi- 
cer in reference to such military aviation, as also all property 



41 See article in N. Y. Tines, May 5, 1918 



SOI 



and personnel used in connection with that service. (3) A Bureau 

of Aircraft Production ,r, 8s established as an executive agency to 

exercise complete jurisdiction and control over the production of 

aircraft and aircraft equipment, with the Chairman of the Aircraft 

Board (which had been created by the Act of October 1, 1917) as its 

executive officer. He was now designated the Director of Aircraft 

Production, and was to have complete charge of the activities, 

42 

personnel, and properties of the said Bureau. 

By another executive order of May 28, 1918, the War In- 
dustries Board, which had been originally formed as one of the ad- 

43 

visory committees of the Council of national Defense, was es- 
tablished as a separate administrative agency to act for the Presi- 
dent and under his direction. The functions, duties, and powers of 
the board were by this order continued as they had been outlined by 

the President in his letter of March 4, 1918, to the chairman, Ber- 
44 

nard M. Baruch; and in its new capacity the War Industries Board 
became one of the most important factors in coordinating the in- 
dustrial resources of the nation and thus contributing to the suc- 
cessful conclusion of the war. 

The war having been won, President Wilson ordered the War 
Industries Board to be dissolved January 1, 1919, and certain of 
its functions transferred to other executive agencies. Thus the 
powers and functions of the Division of Planning and Statistics 
were transferred to the War Trade Boar-, 8s also the powers of the 
War Industries Board with respect to any orders, directions, regula- 

42 Executive Order o^ May 20, 1918. Official Bulletin, May 
21, 1918. 

43 Under authority of the Army Appropriations Act of Aug. 29, 
1916. U. S. Stats ., 64 Con?., 1 Sess., 619, 650. 

44 Officiel Bulletin. May 31, 1916. For the letter referred tji 
as outli ning the functions of the board, see ibid. , Mar. 31, 1918. 



202 



tions, or functions that oould not, in the opinion of the chairman, 
be ebrogeted, complied with, or fulfilled by the 1st of January; 
while those of the Wool Division were transferred to the Bureau of 
Markets in the Department of Agriculture. The powers and functions 
of the Price Fixing Committee were ordered to continue until the 
prices fixed by the committee should have expired, whereupon all 
the papers and records should be delivered to the liquidating of- 
ficer of the War Industries Board, and the committee should stand 
dissolved. The order further specified that the War Industries 
Board, or any number of its members and officials might be continued 
for a limited period after January 1st, if the chairman found that 
to be necessary for the proper performance of any duty entrusted to 

him or to the board, but only for the purpose of performing that 

45 

duty and liquidating the affairs of the board. 

Other particularly important orders issued under the 
Overman Act were those affecting the natural resources of the coun- 
try. Thus, by executive order of July 3, 1918, the records, person- 
nel, and powers of the Federal Trade Commission relating to the pro- 
duction and distribution of coal and coke were taken from that body 
and transferred to the Fuel Administration. 46 By another order of 
July 31, 1918, the President likewise placed the control of the 
petroleum supply in the hands of the Fuel Administrator, directing, 

45 Executive Order of Dec. 31, 1918. Official U. S. Bulletin . 
Jan. 89, 1919. While this executive order dissolving the War In- 
dustries Board was specifically based on the Overman Act, the order 
of May 28, 1918, establishing that board as an administrative agency 
contained no reference to that act or any other statute, though th8t 
authority was evidently presumed. Another executive order apparent- 
ly issued under authority of the Overman Act, but making no specific 
reference to it, was th8t of June 25, 1918, transferring the gas ex- 
periment station 8t American University (Washington, D. C.) from the 
jurisdiction of the Bureau of Mines to that of the V/ar Department. 
Official Bulletin. June 28, 1918. 
46 Ibid.. July 10, 1918. 



803 



however, that such control should be exercised through a Committee 

on Standardization of Petroleum Specifications, the composition of 

47 

which was prescribed in the order. Of a similar nature was a 

later order conferring the control of the mineral resources of the 

48 

country upon the Secretary o^ the Interior. 

Numerous other executive orders were issued under the 
authority of the Overman Act, transferring and coordinating various 
functions and services. On May 31st, all the law officers of the 
government were ordered to "exercise their functions under the su- 
pervision and control of the head of the Department of Justice", ex- 
cept ing only those officers in the Philippines, the Comptroller of 

49 

the Treasury, and the Judge Advocates General of the Army and Navy;* 1 

on June 18th, the war housing activities were placed under the con- 

50 

trol of the Secretary of Labor; and on July 1st, all the sanitary 
and public health services were concentrated under the supervision 
of the Secretary of the Treasury, excepting those health functions 
military in character, exercised by the Surgeons General of the 
Army and Navy and by the Provost Marshal General. ^1 

Finally, to show the great variety in the actions trken 
under the Overman Act, mention may be made of the executive order 
of October 3, 1916, transferring $120,000 from the appropriation of 
|l, 620,000 for the censorship of ^oreign mails under the Post Of- 
fice Department, and allotting that amount to the Secretary of War 



47 Official Bulletin . Aug. 7, 1918. This committee was to be 
composed of 7 members, as follows: a chairman appointed by the Fuel 
Administrator, one member appointed by th e Secretary of War, one by 
the Secretary of the Navy, one by the chairman of the Shipping Boarc 
one by the Director General o^ Railroads, one by trie Director of the 
Bureau of Mines, and one by the Director of the Bureau of Standards. 

48 Ibid . , Nov. 18, 1918. 

49 TbTd" . t June 4, 1918. 

50 Ibid . , June 20, 1918. 

51 Ibid. , July 2, 1918. 



204. 



for the censorship of the mails in the Panama Canal Zone; end of 

the executive order of October 22, 1918, by which the President 

transferred a single individual (W. F. Sloan, of the Division of 

Program and Statistics) from the Bureau of Aircraft Production to 

the Post Office Department for such duties as might be assigned to 

him by the Postmaster General in connection with the control and 

53 

operation of the telegraph and telephone services. 

The excellent results of the "blanket authority" thus 
conferred on the President with regard to administration in time of 
war, may be considered to have set a precedent for the future, 
which will undoubtedly be followed in case of another emergency. 
As a result, therefore, of his duty to administer and enforce the 
laws, of his power to nominate, appoint, and dismiss the chief ad- 
ministrative officers, and o^ the administrative powers conferred 
by statute, it may fairly be said that the President, in time of 
war esrecielly, "has become in effect the administrator- in-chief of 
the Government." 

52 Official Bulletin , Oct. 10, 1918. 

53 Ibid ., ^ov. 13, 1918. 

54 Cf. Y/illouehby, Government Organization in V-ar Time and 
After. 5-6. 



205. 



Chapter XI. 
Powers of Police Control. 



The Bill of Rights is generally considered the most 

sacred part of the Constitution, especially those portions of it 

guaranteeing freedom of speech, o* the press, and of assembly; 

security from arbitrary arrest and deprivation of property; and a 

speedy trial by jury. 1 One of the most important, as well as one 

of the most perplexing questions that arise in time of war is that 

of the extent to which these ordinary civil rights of the individual 

may be restricted in the interest of the public safety and the 

national defenie. Clearly the Constitution is not merely a peace 

instrument, but was intended to protect the individual in time of 

war as in time of peace. The doctrine of inter armas leges silent 

2 

can have no place in a constitutional government; nevertheless it 
must also be recognized that the guaranty of civil rights cannot 
a^r-ly in the same fashion, nor to the same extent, in time of war 
as under normal conditions. 

One distinguished authority says that "war is a negation 



1 Amendments . Arts. I, IV, V, VI. 

2 "The Constitution of the United States is a law for rulers 
and people, equally in war and in peace, and covers with the shield 
of its protection all classes of men, at all times, and under 811 
circumstances. No doctrine, involving more pernicious consequences, 
was ever invented by the wit of man than that any of its provisions 
can be suspended during any of the great exigencies of government." 
Ex parte Milligan , 4 Wall., 2, 120-121 (1866). However, a commit- 
tee o-" the N. Y. B8r Association, at its meeting in Jan., 1917, 
reported as follows: "In time of war the laws are silent; during 
the war civil riphts may be suspended at the will of the Commander- 
in-Chief. The Constitution does not inure to the benefit o^ the 
public enemy, of spies, or of enemy sympathizers." This position 
was severely criticized by Dean H. W. Ballentine, the College 

o^ Law in the University of Illinois, in an article, "The Effect of 
W n r on Constitutional Liberty", in Case and Comment , XXIV, 3 (June, 
1917) . 



206. 



of civil rights", and holds that in its control over the life, 
liberty, and property of those whom it recognizes as public enemies, 
Congress is limited "only by the dictates of humanity and a respect 
for the practice of nations." Another writer contends that the 
amendments guaranteeing these rights were intended "as declarations 
of the rights of peaceful and loyal citizens, and safeguards in the 
administration of justice by the civil tribunals; but it was neces- 
sary, in order to give the government the means of defending itself 
against domestic or foreign enemies, to maintain its authority and 
dignity, and to enforce obedience to its laws, that it should have 
unlimited war powers ; and it must not be forgotten that the same 
authority which provides those safeguards, and guarantees those 
rights, also imposes upon the President and Congress the duty of 
so carrying on war as of necessity to_ supersede and hold in tem - 
porary suspense such civil rights as may prove inconsistent with 
the complete and effectual exercise of such war powers and of the 
belligerent rights resulting from them. . . The rights enjoyed 
under the constitution in time of peace are different from those to 
which he is entitled in time of war.""* 

Even if we do not fully accept the contention of these 
writers that civil rights may be suspended in time of war, still 
it would seem to be apparent that at such a time these rights must 
be subject to some modification, restriction, or at least, very 

3 W. A. Dunning, in Pol. Sci. Quar . , I, 176. 

4 Whiting, War Powers under the Constitution . 51. But in his 
dissenting- opinion in the recent case of Abrems v. U. S. (40 Sup. 
Ct., 17), Justice Holmes declared that the right of free speech is 
the same in war 8S in peace, saying, "It is only the present dan- 
gers of immediate evil or an intent to bring it about that warrants 
Congress in setting a limit to the expression of opinion where 
private rights are not concerned." Cited in Central Law Jour ., 
LXXXIX, 444 (Dec. 19, 1919). 



p 



207 



careful supervision, in order thst the government may contend suc- 
cessfully with sedition and disloyalty from within as well as 
against the enemy without; the principle justifying this view being 

that the rights of the individual must yield to those of the state 

5 

in the time of the state's peril from a public enemy. Hence 
there have been developed what may be called the police powers of 
the President in time of war, that is, the powers exercised by 
him in restraining and controlling the actions of individuals, 
whether they be citizens or aliens, within the limits of the 
country, during a period of war or similar emergency. 

The relation of this war power to the rights of enemy 
aliens who are fonnd within the country after the outbreak of a war 
is comparatively simple. International law from its very begin- 
ning recognized the right of a state to arrest such enemy aliens 
immediately upon the outbreak of"war and detain them as captives 
during the period of hostilites. later long- continued practice 
brought about the rule that a reasonable time for departure should 
be given before arrest, developing finally into the rule that such 
aliens should be permitted to remain during the entire period of 
the war, unless military considerations required their expulsion. 
The rifrht to arrest or otherwise restrict and govern the conduct of 
enemy aliens, has, however, never been formally abandoned, and was 
indeed revived on a wholesale scale by each belligerent during the 
recent world war. 

In the United States, the right o^ a state under inter- 
national law thus to regulate and restrict the conduct and move- 



5 Cf. Glenn, The Army and the Law , 144. 

6 Lawrence, Principles of International Law , 387-369; Hershey, 
Essentials of International Public Law, 362. 



208 



ments of enemy aliens has been definitely vested in the President. 
An set of Congress passed nearly a century and a quarter ago, 
designated as alien enemies all male natives, citizens, denizens, 
or subjects of a hostile nation or government, who were at least 
fourteen- years of age and not actually naturalized; and in 1918 

Q 

the scope of this 8ct was enlarged so as to include women. The 
President, by virtue of these acts, is authorized to direct the 
conduct to be observed on the part of the United States towards 
these en<~my aliens, the manner and degree of the restraint to which 
they shall be subject, and in what cases and upon what security 
their continued residence in the United States may be permitted; 
to provide for the removal of those who are not to be permitted to 
remain; and "to establish any other regulations which shall be 
■Pound necessary in the premises for the public safety." In case 
of removal being ordered, the President is further authorized, at 
his discretion, to give such reasonable time for departure "as may 
be consistent with the public safety, end according to the dictates 
of humanity and national hospitality." 

In other words, the President is, impliedly by the rules 
of international law and expressly by statute, vested with full 
power to restrict 8nd control the conduct and movements of alien 
enemies as he may see fit. He may permit them to stay in the United 
St8tes during the course of a war, with such restrictions upon 
their conduct as he may deem proper, or with no restrictions; he 
may order them to depart from the country, and if they refuse or 
neglect to go, may compel their removal; or he may arrest and intern 



7 Act of July 6, 1798. Annals of Cong-. , 5 Cong., Ill, App., 
3753; U. S. Rev. Stats ., sees. 4067-4070. 

8 Act 0? Apr. 16, 1918. U. S. Stats ., 65 Cong., 2 Sess., 531. 



209. 



thei- for the period of the war. His actions under these powers ere 

9 

final, end in no way subject to judicial review. 

Until recently little use seems to have been made of this 
power. During the war of 1812, aliens were ordered to report their 
names and obtsin "certificates" once a month. ^ Otherwise they 
have apparently been permitted to remain in the United States with 
no harrassing regulations governing their conduct and movements. 
During the recent war with Germany and Austria-Hungary, however, the 
magnitude of the struggle, involving as it did practically every 
resource and industry of the nation, and the great number of citi- 
zens or subjects o^ those countries resident in the United States, 
made the danger from such enemy aliens considerably more serious 
than ever before. 

President Wilson, acting under the authority of the Act 
of 1798, therefore took precautionary measures immediately upon the 
entry of the United States into the war, and in the very same pro- 
clamation announcing the existence of a stale of war, 1 ' 1 ' he estab- 
lished 8 set of twelve regulations governing the conduct of such 
enemy aliens within the United States. Under these regulations, 
the possession by enemy aliens of any sort of fire-arm or signal 
apparatus was prohibited; a barred zone was created around every 
fort, arsenal, and other government property; attacks or threats 
o f any sort apainst the government, its measures, policies, or per- 
sonnel, were not allowed; their residence within any prohibited 
erea that might be designated by the President was not permitted; 
their departure from and entry into the United States was allowed 

9 Glenn, The Army end the Law , 87. 

10 Life and Works of John Adams , X, 42. 

11 Proclametion o^ Apr. 6, 1917. U. S. Stats ., 65 Cong., 1 
Sess., Procs., 6. 



210 



only Tinder such restrictions as the President might prescribe; hos- 
tile acts, or sets giving "information, aid, or comfort" to the 
enemy were of course forbidden; and they were subject, upon suspi- 
cion, to summary arrest and internment. 

These regulations of April 6. were supplemented by eight 

additional regulations established in the proclamation of November 
12 

16, 1917, which absolutely excluded enemy aliens from such regions 
as the territorial waters of the United States, the District of 
Columbia, end the Panama Canal Zone; required them to register; 
and ordered them to obey such restrictions and regulations upon 
their residence, occupation, and travel, as the Attorney General 
might ma>e from time to time. Upon the declaration of war against 
Aust ria -Hungary , the scope of these regulations was extended to in- 
clude the citizens and subjects of that country; 1 ^ and finally, 
to include the alien women of both Germany and Austria-Hungary. 

While the Act of July 6, 1798, supplemented by the Act 
of April 16, 1918, therefore conferred extensive powers of police 
control upon the President, there can be no question but that such 
powers are strictly in line with the accepted rules of international 
practice, and even without these statutes, might be said to hr>ve 
been vested in the President as the Chief Executive and as Comman- 
der-in-Chief. 

Somewhat more doubtful are the powers conferred by the 



12 U. S. Stats ., 65 Cong., 1 Sess., Procs., 72. 

13 Proclamation of Dec. 11, 1917. Ibid . , 2 Sess., 85. 

14 Proclamation of Apr. 19, 1918. Ibid . , 128. On Christmas 
Day of 1918, these regulations were rescinded, in their entirety 
as extended to women, and also as applied to men, excepting only 
the rpstrictions as to departure from and entry into the United 
States. Proclamation of Dec. 23, 1918. Ibid. , 3 Sess., 274. Thi 
proclamation is unique in being done "at the city of Paris, in the 
Republic of Prance." 



£11. 



famous Alien Act of 1798, which was passed during the stress of 
the expected war with France and applied to all aliens, whether 
from an en^my or a friendly country. By the provisions of this act, 
the President was authorized to order out of the country "such 
aliens as he shall judge dangerous to the peace and safety of the 
United States, or shall have reasonable ground to suspect are con- 
cerned in any treasonable or secret machinations against the Govern- 
ment thereof." A license to reside within the United States at any 
place designated by the President might be secured, if the alien 
concerned could prove, "to the satisfaction of the President", 
that he was not dangerous to the public safety; but any alien re- 
turning to the United States after his removal, unless by permission 
of the President, was to be imprisoned "so long as, in the opinion 
of the President, the public safety may require." 

This measure thus gave the President practically unlimited 
police control over ell aliens within the United States. Though 
enacted during a time of technical peace, the Alien Act was de- 
signed (together with the Sedition Act) as a war measure, "to af- 
ford the President of the United States an effective weapon against 
what seemed sn especially pernicious and dangerous form of domestic 
opposition in time of war." 1 ^ A great many of the recently admitted 
foreigners were extreme radicals who "expressed their opinions by 
speech or ven with a venomous facility that has few counterparts in 

15 Act o* June 25, 1798. Annals o* Cong . . 5Cong. . Ill .App. 5744. 

16 F. H. Anderson, in Report. Am. Hist. Assn. 1912 , 115. 
"French spies then swarmed in our cities and in our country; some 
of them v;-ere intolerably impudent, turbulent, and seditious. To 
check them, res the design of the law." Adams to Jefferson, June 
14, 1813. Life and Works of John Adams, X, 42. The limitation of 
the act to two years is also an indication that it W8S designed 
purely as a war measure. 



212. 



these milder times," condemned every magistrate in power in the 

United States, and whose outpourings could not he looked upon as 

17 

altogether harmless. There might even be said to have been a 
precedent for the Alien Act in a similar act passed in Virginia in 
1785 and reenacted in 1792, but which, as Madison pointed out, dif- 
fered in that the Virginia act expressly applied only to enemy 
aliens in time of actual war. 1 ® 

The powers conferred by the Alien Act were upheld as a 
legitimate exercise of the war power, in the report of a House com- 
mittee submitted February 21, 1799, as follows: "The right of re- 
moving aliens, a_s an incident to t :e power of war and peace , accord- 
ing to the theory of the Constitution, belongs to the government of 
the United States. . . Congress is required to protect each state 
from invasion; and it is vested • . . with powers to make all laws 
which shall be proper to carry into effect all powers vested by the 
Constitution in the government of the United States, or in any de- 
partment or officer thereof; and to_ remove from the country , in 
times of hostility, dangerous aliens, who may be employed in pre- 
paring the way for invasion, is & measure necessary for the purpose 
of prevent ing invasion , snd, of course, a measure that Congress is 
empowered to adopt. . . Although the committee believe that each 
of the measures adopted by Congress (referring also to the Sedition 
Act) is susceptible of an analytical Justification, on the princi- 
ples of the Constitution and national policy, yet they prefer to 
rest their vindication on the true ground of considering them as 
parts of a general system of defence adapted to a crisis of extra- 



17 Chenning, History o^ the United States , IV, 220. 

18 Writings of James Madison, VI, 369. 



213. 



ordinary difficulty and denger."- 1 ^ Even the bitterest critics of 

the Alien Act questioned its constitutionality only as it applied 

to friendly aliens, admitting frankly that "the removal of aliens 

20 

is an incident to the power of war." 

Apparently the rower given to the President by the Alien 

21 

Act was not actually exercised in a single instance; although 

in a courle of cases final action by the President was probably 

forestalled only by the voluntary departure of the person concerned, 

and a considerable number of foreigners are said to have left the 

22 

country, anticipating the enforcement of the act. On the whole, 
it is probably correct to say that this law was "neither unjusti- 
fiable in purpose nor administered with special harshness. "^ 

The power of the President to deal summarily with citizens 
whom he may consider dangerous to the public safety is not so clear. 
The provision in the Constitution permitting the suspension of the 

privilege o^ the writ of habeas corpus "when in cases of rebellion 

24 

or invasion the public safety may require it", shows that the tak- 
ing of extraordinary mea: ures in cases of such emergency was clearly 



19 Am. State Papers , Misc., I, 182, 183; Elliot's Debates . 
IV, 441. 

20 See Madison's famous Report of 1800 on the Virginia Reso- 
lutions. Writings of James Lfedison . VI, 366-367. 

21 Life end Works of John Adams . X, 42. President Adams, in 
at least one instance, expressed a willingness to apply the act. 
Ibid . , IX, 5. 

22 See article by F. LI. Anderson, "The Enforcement of the 
Alien end Sedition Lews," in Report . Am. Hist. Assn. 1912 . 115-126, 
esp. 116-117. 

23 Bescom, Growth o^ Nationality in the United States . 24} 
Chenning, op. cit .. IV, 223-224. 

24 Art. I, Sec. 9, Gl. 2. 



£14 



recognized as necessary end proper. Although the Constitution 
itself does not expressly stete by what authority the privilege of 
the writ may be suspended, it had been the general opinion, up to 
the time of the Civil far, that Congress alone had the power to 
judge of the exigency requiring that action. This opinion had been 
induced, not only by the position of the habeas corpus clause in 

2 

that pert of the Constitution devoted to the legislative department, 

£ 7 28 
but elso by precedent, by the practice under the Constitution, 

29 

and by the weight of authority. 



25 There was some objection to this clause at the time. Thus 
Jefferson in a letter to Madison, July 31, 1788, protested as fol- 
lows: "Why suspend the Hab. Corp. in insurrections & rebellions?. . 
If publick safety requires that the government should have a man 
imprisoned on less probable testimony in those than in other emer- 
gencies; let him be taken and tried, retaken & retried, while the 
necessity continues, only giving him redress against the government 
for damages. Examine the history of England. See how few of the 
cases of the suspension of the Habeas Corpus law have been worthy of 
that suspension. They have been either real treasons wherein the 
parties might as well have been charged at once, or shsm plots where 
it W8s shameful they should ever have been suspected. Yet for the 
few cases wherein the suspension of the hab. corp. has done real 
good, that operation is now become habitual, & the minds of the na- 
tion 8lmost prepared to live under its constant suspension." Writ - 
ings of Thomas Jefferson . V, 46-47. 

26" In the state ratifying conventions it was taken for granted 
thet Congress alone could suspend the writ. The following amendment, 
for example, was proposed by the New York convention of 1788: "That 
the privilege of the habeas corpus shall not, by any law , be suspend- 
ed for a longer term than six months, or until twenty days after the 
meeting of the Congress next following the passing of the act for 
such suspension ." Elliot's Debates , I, 330. 

27 In England, Parliament, not the Crown, suspends the writ. 

28 President Jefferson's message of Jan. 22, 1807, on Burr's 
conspiracy, was followed by the passage in the Senate of e bill 
suspending the writ of habeas corpus in certain cases ^or three 
months. In the House the bill was rejected by an overwhelming 
msjority. Neither in the message o^ the President nor in the dis- 
cussion in Congress was there any suggestion o^ the President's 
rie-ht to exercise that power. Annals of Cong ., 9 Cong., 2 Sess., 
39-43, 44, 402-425. 

29 Ex parte Bollman , 4 Cr. , 75, 101 (1807); Story, Commentariei i 
on the Constitution . II, 208. Cf. Chambruri, The Executive Power , 
241; Winthrop, Abridgment o^ Military Law ( 2nd ed . ) , 330-531. 



215. 



With the outbreak of the Civil War, this settled opinion 

was disregarded by President Lincoln, acting- on his own initiative. 

or through his subordinates, and upon the advice of his Attorney 
30 

General. On April 27, 1861, he authorized General Scott to sus- 
pend the writ of habeas corpus by the following order: "You are 
engaged in suppressing an insurrection against the laws of the Unite< 
States. If at any point on or in the vicinity of any military line 
which is now or which shell be used between the city of Philadelphia 
end the city of Washington, you find resistance which renders it 
necessary to suspend the writ of habeas corpus for the public safe- 
ty, you personally, or through the officer in command at the point 
at which resistance occurs, are authorized to suspend that writ."^ 1 

On May 10, the President by proclamation also authorized 
the commander of the United States forces on the coast of Florida, . 
"if he shall find it necessary, to suspend the writ of habeas cor- 
pus and to remove from the vicinity of the United States fortres- 
ses all dangerous or suspected persons", on June 20, he directed 
General Scott to suspend the writ in the case of a single officer 
charged with treason;^ on July 2 and October 14, he extended his 

order of April 27 to cover the military line from Washington to 
54 

Bangor, Maine; ana on December 2, he empowered General Halleck 

35 

to suspend the writ Ft his discretion in the state of Missouri. 

36 

Finally, by proclamat ion of September 24, 1862, the President de- 

30 Attorney General Bates, July 5, 1861. 10 Op.^tty .Gen . . 74. 

31 Hichardson, Messages and Papers of the Presidents , VT, 1%» 
Only two days before, Lincoln declined to permit Gen. Scott to ar- 
rest or disperse members of the Maryland legislature suspected of 
favoring secession, before the legislature should meet. Ibid . . 17. 

32 Ibid., 17. 

33 Ibid . , 19. 

34 Ibid . , 19, 39. 

35 Ibid. , 99. 

36 Ibid., 98-99. 



216. 



clered that all persons siding or abetting the rebellion, discourag- 
ing enlistments, resisting- drafts, or guilty of "disloyal practices',' 
should be subject to trial by court-martial or military commission, 
and ordered the suspension of the writ of habeas corpus in their 

cases -- a proclamation which an eminent authority has characterized j 

37 

as "a perfect platform for a military despotism." 

While the suspension of the privilege of the writ of 

habeas corpus does not of itself authorize arbitrary arrests or any 

unusual procedure in trial, it has that practical effect, since 

those suffering arbitrary arrest would have no remedy to prevent 

the continuance of their confinement during the suspension of the 
38 

writ. Arbitrary arrests were made from the very beginning of the 

war, Members of the Maryland legislature, the mayor of Baltimore, 

and several other prominent citizens were arrested by order of the 

Secretary of War, in order to prevent the passage of an ordinance of 

secession. Later, wholesale arrests were made all over the country, 

39 

especially in the West, some by direct authority of the President, 
some by order of the Secretary of State, some by that of the Secre- 
tary of War, sometimes merely by virtue of a simple telegram, and 



37 W. A. Dunning, in Pol. Sci. Quar .. I, 188. "Discouraging 
enlistments and disloyal practices were offences unknown to the law, 
and the phr-se disloyal practice was large enough to include any- 
thing." S. G. Fisher, in Pol. Sci. Quar . . 111,457. The elastic inter- 
pretation of the latter term is indicated by the following contem- 
porary definition: "He is a public enemy who seeks falsely to exalt 
■;he motives, character, and capacity of armed traitors, to magnify 
their resources, to encourage their efforts by sowing dissension at 
lome, or by inviting intervention of foreign powers in our affairs. 
'Ie who overrates the success, increases the confidence, and encoura- 
ges the hopes of our adversaries, or underrates, diminishes, or weak- 
ens our own, and he who seeks false causes of complaint against the 
officers of our government, or inflames party spirit among ourselves, 
. . . gives to our enemies that moral support v/hich is more valuable 
to them than regiments of soldiers, or millions of dollars." Whit- 
ing, War Pov:ers'under the Constitution , 197-198. 

38 Cf. Burgess, The Civil War and the Constitution . II, 216. 

39 See Erecutive Order of Aug. 8, 1862. Richardson, op. c it . ,VI,l2j|. 



217. 



in no case with the warrant required by the Constitution, the only- 
justification being that the persons so arrested were, by treason- 
able sueekinp- and writing, giving aid and comfort to the enemy, 
and that their imprisonment was necessary for the public safety. 

In March, 1863, Congress expressly authorized the President 
to suspend the writ of habeas corpus and legalized his past acts, 41 
but for two years Lincoln had suspended the writ of his own accord, 

and had made arrests without warrant, holding the suspects as long 
42 

as he pleased, not only without express authority and contrary to 
the prevailing opinion of his power up to the time of the Civil War, 
but in direct opposition to the authoritative ruling of gjfeXtjJ ^ ' 4* *m 



Ift/iu*^^ He vas, however, clearly supported by public opinion, 
and if any constitutional principle can be deduced, it is "that the 
President may in en emergency exercise the right to arrest and de- 
tain individuals until Congress acts." 4 ^ There is scarcely any doubt 
as is asserted by an eminent authority, that the practices of the 



40 Rhodes, History of the United States , III, 553-556; S. G. 
Fisher, "The Suspension of Habeas Corpus during the 'War of the Re- 
bellion," in Pol. Sci. Quar. . Ill, 454-468, est). 457. 

41 Act of Mar. 3, 1863. 12 Stat, at L. , 755. 

42 By executive order of Feb. 14, 1862, he ordered the release 
of all political prisoners on their parole to render no aid or com- 
fort to the enemies of the United States, granting amnesty for their 
past disloyalty to those who should keep their parole, and declaring 
that "extraordinary arrests will hereafter be made under the direc- 
tion of the military authorities alone." Richardson, otp. cit . , VI, 
102-104, 

43 Ex parte Merry man , Fed. Cases No. 9487 (1861). 

44 Cf. S. G. Fisher, op. cit ., 483. 

45 See W. A. Dunning, "The Constitution in Civil War", in Pol . 
Sci. Quar .. I, 163-198, esp.189; cf. Bascom, Growth of Nationality . 
112-114. The most notable assertion of the President's power was 
the pamphlet by Horace Binney, "The Privilege of the Writ of Habeas 
Corpus under the Constitution", well summarized by S. G. Fisher, 

op. cit.. 459-465. For Lincoln's own defense of his actions, see 



his message to Congress, July 4, 1861, and his replies to communica- 
tions from Nev York and Ohio Democrats, June 12 & June 29, 1863. 
Richardson, op. cit .. VI, 25; McPherson, History of the Rebellion . 
163-167, 170-172. 



218 



administration in the Civil War would be repeated under like circum- 
stances, and that they are to be considered as the precedent of 

46 

the Constitution rether then the opinion of the Supreme Court. 

With regard to the freedom of speech and press , some re- 
strictions on both have always been considered warranted in spite 

47 

of the constitutional guaranties, even in time of peace. In time 
of war, these may be considerably extended so as to prevent inter- 
ference with the successful prosecution of the war by stirring up 

disloyalty or sedition, by encouraging disobedience to the laws or 

48 

by giving 8 id or comfort to the enemy in any way. In fact, it has 

been authoritatively asserted that the freedom of the press in war 

49 

time rests largely with the discretion of Congress. 



46 "It may therefore be claimed that it is the precedent of 
the Constitution in Civil war that the President may suspend all 
the safeguards of the Constitution in behalf of personal liberty 
anywhere within the country, taking upon himself the responsibility 
therefor to Congrese, and that subsequent authorization by Congress 
to do the like things in future works indemnification, and makes 
the preceding Presidential assumptions legitimate and lawful, if 
they lscked anything of being so before." Burgess, The Civil Wa r 
and the Constitution . II, 217. 

47 "Whet is the liberty of the press? Who can give it any 
definition which would not leave the utmost latitude for evasion? 
I hold it to be impracticable; and from this, I infer that its 
security, whatevpr fine declarations may be inserted in any consti- 
tution respecting it, must altogether depend on public opinion and 
on the general spirit of the people and of the government." The 
Federalist , No. 84 (Goldwin Smith ed., p. 476). 

48 In its decisions upholding the constitutionality of the 
Espionage Act of 1917, the Supreme Court declared that the first 
amendment affords no protection to an individual convicted under 
that act for printing and distributing in time of war a document 
calculated to cause insubordination in the military and naval forces 
and obstruction to recruiting; that it likewise is no protection 
ae-ainst conviction for publishing and circulating newspapers or 
articles attempting to cause disloyalty and mutiny; and that it is 
no valid defense against conviction for delivering a speech oppos- 
ing the war, so expressed that the natural effect is to obstruct 
recruiting. Schenck v. U. S . , 39 Sup. Ct. Rep., 247; Fr ohwerk v . 

U. S. , ibid., 249; Debs y. U. 3 . . ibid., 252. 

49 War Cyclopedia (1st ed.), 101. 



219 



Such wsr time restrictions may take the form of penaliz- 
ing certain kinds of speech or writing. This was the nature of the 

50 

famous Sedition Act of 1798, which, designed, like the Alien Act 

already referred to, as a war measure, attempted to curb the 

spread of sedition during the crisis with France by punishing false, 

scandalous, and malicious writings against the Government, either 

house of Congress, or the President, written with intent to stir up 

sedition. Of 8 similar nature, but even more clearly designed as a 

52 

war measure, is the Espionage Act of 1917, of which it has been 

said that "few more sweeping measures have ever found their way to 

53 

the national statute book." 

54 

As amended in 1918, this act is especially stringent, 
making it a penal offense, not only to hinder the success of the 
United States and promote that of the enemy by making false reports, 
by inciting or attempting to incite disloyalty or mutiny, or by ob- 
structing recruiting and enlistment, but also to "willfully utter, 
print, write, or publish any disloyal, profane, scurrilous, or 
abusive language about the form of government . . , or the Consti- 
tution . . , or the military or naval forces . . , or the flag . . , 
or the uniform of the Army and Navy of the United States", or any 
language intended to bring these into "contempt, scorn, contumely, 

50 Act of July 14,1798. Annals of Cong . . 5 Cong. , III, App. , 3776. 

51 See report of House Committee, Feb. 21, 1799. Am. State 
Papers, Mi sc .. I, 182, 163. That the act was designed purely as an 
emergency measure is further indicated by the fact that it was to 
continue in effect only until Mar. 3, 1801. 

52 Act of June 15, 1917. Public Ho. 24, 65 Cong., in Wigmore, 
Source-Book of I.lilitary Law and War-Time Legislation. 484-500. 

53 War Cyclopedia (1st ed.), 68. 

54 Act of May 16, 1918. Public No. 150, 65 Cong., in Wigmore, 
op. cit .. 500-501. 



220. 



or disrespect". Through his constitutional power to "take care that 

the lews be faithfully executed", it was of course largely within 

the discretion of the President to interpret these provisions in 

such a way as to make them instruments of oppression or geniune 

55 

attempts to suppress disloyalty and sedition. 

Another method of placing war time restrictions on the 

press is through censorship in advance of publication. This method 

is largely execut ive . The President, as Commander-in-Chief, has the 

undoubted power to suppress or censor such newspapers or other 

publications in occupied territory as he may deem injurious to the 

56 

public interests. At le8st one writer asserts that the President 
also has this power within the United States as well. He says that 
the power necessarily exists somewhere to prevent disclosures use- 
ful to the enemy, should such disclosures be threatened or under- 
taken, and maintains that "it is of the very essence of all things 
which lie between success and failure in war that this power should 
be reposed where it can be exercised instantly, as the exigencies 
of the situation may develop the need", and that therefore the 
President is not dependent upon Congress in order to exercise the 
power of censorship, but has the right, as Commander-in-Chief, to 
prevent and suppress such publications. "To deny the power is 
to deny the right of the commander-in-chief to protect his armies 
against a danger as obvious as would be the danger o^ allowing armie 
to organize and drill and accumulate arms and ammunition behind 
the lines." 67 

55 For the enforcement of the Sedition Act of 1798, see F. M. 
Anderson, ox>. cit., in Report , Am. Hist. Assn. 1912 . 118-122. For 
opinion as to its constitutionality, see Story, Commentari es on the 
Const itut ion , II, 619, n. 

56 Mg. Ops. J. A. G. , (ed.1901), 426. 

57 T. J. 0* Donne 11, "military Censorship and the Freedom of the 



This power of censorship was both asserted end exercised 

during the Civil War. Postmaster General Blair stated it as his 

opinion "that a power and duty to prevent hostile printed matter 

from reaching the enemy, and to prevent such matter from instigating 

others to cooperate with the enemy, by the aid of the United States 

mails, exist in time of war , and in the presence of treasonable and 

armed enemies of the United States, which do not exist in time of 

58 

peace , and in the absence of criminal organizations;" which view 
was sustained in a report of a committee of Congress, ^ and a way 
thus opened for nlacing the press "at the mercy of the Government 
in time of war". 

In accordance with these views, a censorship of some sort 
existed from the outset of the war, though it was apparently never 
very effective. Government control of the telegraph lines was 
established as early as April, 1861, and a censor (H. E, Thayer) 
was appointed, with instructions from Secretary Seward to prevent 
the issue from Washington of telegraphic messages relating to the 
civil or military operations of the government, containing anything 
more than a bare statement of essential facts. In August of the 
serr.e year, an attempt was made to reach a "gentlemen's agreement" 
between the government and the press, whereby the newspapers were 
to refrain from publishing information giving aid or comfort to the 
enemy, while the government was to afford facilities for the trans- 

58 Quoted in Burgess, op. cit ., II, 222-223. 

59 Report of House Judiciary Committee, Jan. 20,1863. Ibid . , 223 

60 For example, no mention was permitted of the criticism of 
Gen. Stone for the Ball's Bluff disapter; nor o^ the fact that 
some senators hed urged the removal of Gen. Sherman; nor of the 
Cebinet's objections to Secretary Cameron's report. See J. G. Ran- 
dall, "The Uewspsper Problem in Its Bearing upon Military Secrecy 
during the Civil War", in Am. Hist. Rev ., XXIII, 303-323, esr. 303- 
304 (Jan., 1918). 



222. 



mission of suitable information. 

This proved to be a failure, due to the unscrupulous 

character some correspondents and newspapers, and finally resort 

was had to an adrainistrat ive policy of news control. The censoring 

function was transferred from the State to the War Department; 

military supervision of tr.e teiegrapn lines was ordered by authority 

o^ Congress, beginning in February, 1862; end a special officer was 

appointed ^or the general supervision of the telegraph business, wit: 

the title of Assistant Secretary of War 8nd General Manager of Mili- 

61 

tary Telegraphs. Under the direction of this officer, regulations 

were drawn up governing the transmission of news over the telegraph 
62 

wires, and a general policy of nett-s control was instituted, 
though the fact that the mails remained open and uncensored made 
these but half-way measures towards effectively closing the news 
channels . 

There were also some attempts at suppression of news- 
papers and discipline of correspondents. In August, 1861, Postmas- 
ter General Blair ordered certain New York and Brooklyn papers ex- 
cluded from the mails, and the United States marsn^l seized copies 

of one of them -- these papers having been indicted for rebellious 
63 

utterances; the Baltimore Transcript , the Metropolitan Record . and 



61 See order of Feb. 25, 1862, taking possession of the tele- 
graph lines and naming Edward S. Sanford as military supervisor of 
telegraphic messages. The same order specifically forbade tele- 
graphic communications concerning military operations not expressly 
authorized by the War Department, the commanding General, or the 
generals commanding in the several departments; newspapers publish- 
ing such military news without authority to be excluded ^rom the 
telegraph service and from the railroads. Richardson, op. cit. , 
VI, 108-109. 

62 For these regulations, see J. G. Randall, op. cit .. 305. 

63 These re re the Journal of Commerc e , the Da ily News, the 
Freeman' s Journal , and the Brooklyn &8gle . Burgess, op. cit .. II, 
^22T' Cong. Record . 65 Conp., 2 Sess., (Feb. 19, 1918 ) , 2557. 



223. 



the Cincinnati Enquirer were each suppressed for short periods by 
generals commanding- in the departments in which they circulated; 
while the New York World and the Journal of Commerce were seized and 
suppressed for three days in May, 1864, under orders of President 
Lincoln, for publishing a bogus proclamation implying the admission 
of a Union disaster. The editor of the Baltimore Exchange . orenly 
sympathetic with secession, was arrested and confined in Fort La- 
Fayette, but released after some months by order of the War Depart- 
ment; the Chicago Times was suppressed in 1863 by General Burnside, 
but his action was revoked by the President. Several of the gene- 
rals, particularly Grant and Sherman, attempted at various times to 
discipline newspaper correspondents within their lines with varying 
degree of success. 5 ^ 

While the actual governmental interference with the free- 
dom of the press during the Civil War was, on the whole, compara- 
tively slight, ^ the precedent was established that "this part of 
the Constitution (the first amendment) may be suspended by order of 
the Administration, when in the judgment of the President the public 
safety demands it". 65 

V, ith the entry of the United States into the recent world 
war, the problem of news control again became acute, 8nd on April 
13, 1917, Secretary of State Lansing, Secretary of War Baker, and 
Secretary of the Navy Daniels addressed a joint communication to 
the President, setting forth their views on the subject. They 
pointed out the danger in premature or ill-advised announcements of 
policies, plans, and specific activities, and suggested the need for 

64 Cong. Record . 65 Cong., 2 Sess., (Feb. 19, 1918), 2557; 
J. G. Randall, op. cit .. 318-321. 

65 Ibid . , 322-323. 

66 Burgess, op. cit . 1,1,223. 



224 



some authoritative agency to assume the publication of all the vital 
facts of national defense. "While there is much that is properly 
secret in connection with the departments of the Government, the 
total is small compared to the vast amount o^ information that it is 
right and proper for the people to have. . . It is our opinion 
that the two functions — censorship and publicity — can be joined 
in honesty and with profit, and we recommend the creation of a Com- 
mittee on Public Information. . . We believe you have the undoubted 
euthority to create this Committee on Public Information without 
wa it ing for further legislation , and because of the importance of 
the task, and its pressing necessity, we trust that you will see 
fit t o do so. The committee, upon appointment, can proceed to the 
framing of regulations and the creation of machinery that will safe- 
guard all information of value to an enemy, and at the same time 

open every department of government to the inspection of the people 

67 

as far as possible." 

In accordance with this recommendation and this opinion 

as to his powers with regard to censorship, President Wilson, by 

68 

executive order of April 14, 1917, created such a Committee on 
Public Information, "to be composed of the Secretary of State, the 
Secretary of War, the Secretary of the Navy, and a civilian who 
shall be charged with the executive direction of the committee." 
George Creel was appointed as the civilian chairman, and the Secre- 
taries were authorized to detail an officer or officers to the work 
of the committee. 

Under the direction of the committee so created, a system 
of voluntary censorship was established. The committee at various 



67 See text of letter in Official Bulletin , May 10, 1917. 

68 Official Bulletin , May 10, 1917. 



times issued "requests" to the press to suppress news with respect 

69 

to certain matters of military and navel value. These were sup- 
plemented from time to time by similar "requests" to the press from 
the Secretary of War and the Secretary of the ttavy, 7 ^ to all of 

which the press of the country apparently responded to the general 

71 

satisfaction of the government officials. 

In addition to its direction of this voluntary censorship, 

the policy of news control was further carried out by the Committee 

on Public Information through its organization of various kinds of 

publicity services. A daily p8per was published, beginning May 10, 

1917, in no sense in competition with the regular news journals, 

but containing "all proclamations and Executive orders issued by 

the President; rules and regulations promulgated by the Federal 

departments; official bulletins and statements; statutes bearing 

on the war end tiieir construction; and all other subjects related to 

the prosecution o c the war, to which publicity may properly be gi- 
72 

ven. Other pamphlets were compiled and issued uxider the direc- 

tion of this committee, giving information as to the causes and pur- 



69 Especially information concerning the train and boat move- 
ments of troops, the assembling of transports and convoys, or any 
information from which inference might be drawn of embarkation for 
over-seas service. The suppression of the names of armed merchant 
ships which hed engaged U-boats was also requested, in order to 
save the captains, if later captured, from the fate of Capt. Fryatt. 
Official Bulletin . June 14, June 15, 1917; May 10, June 10, 1918. 

On July 3C, 1917, the committee published an extended list of mat- 
ters concerning which it requested secrecy, which list was revised 
and again strongly urged upon the press on Dec. 31, 1917. Ibid . , 
July 31, Dec. 31, 1917. 

70 Ibid . , Apr. 3, May 27, Aug. 2, 1918. 

71 See statements of Secretary Daniels praising the spirit 

o^ the Ara^ric^n press in adhering to the voluntary censorship. Ibid 
Feb. 12, Aug. 2, 1918. 

72 See statement in first number, May 10, 1917. The paper was 
named the Official Bulletin , later changed to Official U. S. Bulle - 
tin . It was suspended as a government publication Mar. 31, 1919, bu 
was continued as a private enterprise, under the name United States 
Bulletin, published bi-weekly by Roger V/. Babson. 



226. 



73 

poses of the war; news was gathered and disseminated to the news- 
papers of the country; motion pictures were made end distributed 
under its supervision; staffs of lecturers were organized; and 
agencies of various sorts were used to stimulate public opinion 
and spread information on the issues of the war. All this was done 
on the sole authority of the President, the committee even operat- 
ing for a considerable time on the executive budget, but later 

74 

securing some appropriations from Congress. 

Besides this system of voluntary censorship and news 
control under the direction of the Committee on Public Information, 
a rigid censorship of letters and other matter sent out from the 
camps and fields was maintained by the military authorities. In 
January, 1918, this censorship was by General Order lightened so 
8S to permit soldiers in camp in this country to write freely for 
publication, subject to censorship by designated officers who were 
to "delete all references capable of furnishing important informa- 
tion to the enemy." Attention was, however, called to the fact that 
"criticism of superiors and the spreading of false reports which 
would tend to injure the military service constitute breaches of 
military discipline." Matter written by regular newspaper corres- 
pondents not in the military service was not subject to any sort of 
censorship, but the order directed camp commanders to instruct 
these correspondents "that they must rigidly adhere to the requests 



73 The so-called 7/a r Information and Red , White, and Blue serijf! 

74 The work and organization of the Committee on Public Infor- 
mation are outlined in Willoughby, Government Orgenizaticn in War 
Time and After, 35-39; also in a pamphlet compiled under the direc- 
tion of H. H. B. Meyer, Chief Bibliographer of the Library of Con- 
gress, The United States at We r : Organizations end Literature . 79-81 
According to a statement by Mr. Creel, the committee received from 
the President $5,600,000, while from Congress it received but 
$1,250,000. IT. Y. Times . Nov. 1, 1919. 



s. 



227 



for secrecy with respect to information of value to the enemy, as 

defined ... by the Committee on Public Inf ormat ion" f violations 

of these instructions to cause a denial of the privileges of the 
75 

camp. 

In addition to the voluntary and military censorship of 
newspapers and other publications thus established within the United 
States on the sole authority of the President, steps were taken 
early in the war to establish a rigid censorship over the telephone, 
telegraph, and cable systems. By executive order of April 28, 1917, 
President Wilson prohibited all companies operating telegraph and 
telephone lines and submarine cables from transmitting messages to 
points without the United States and from delivering messages re- 
ceived from such points, except such messages as might be permitted 
under regulations established by the Secretary of War and the Secre- 

76 

tary of the Navy. This sweeping order was based on no other 
authority than the power vested in the President "under the Consti- 
tution and by the joint resolution of April 6, 1917, declaring the 
existence of a state of war"; -in other words, solely upon his 
authority as Commander-in-Chief. 

Under this order, a particularly stringent cable censor- 
ship was established. The office of Director of Naval Communica- 
tions and Chief Cable Censor wag created, under whose direction a 
number of cable censorship regulations were issued May 1, and amend- 
ed May 31, 1917, with the avowed intention "to ease the situation 
of the American trader and correspondent abroad, consistent with 

75 Official Bulletin , Jan. 31, 1918. 

76 Ibid .. July 18. 1917. This order was supplemented by a 
similar order of Sept. 26, 1918, extending the restrictions to mes- 
sages on or near the Mexican border. Ibid . , Sept. 27, 1918. 



228 



the objects of military censorship." On July 18, the censorship 
wes extended to all Atlantic cables, and new regulations were pro- 
mulgated, effective on thst date. 7 ® 

Thus far the censorship was carried on solely by virtue 
of the President's orders. However, the Trading with the Enemy 
Act of October 6, 1917, included among its provisions one authoriz 
ing the President to cause all communications to and from foreign 

countries by mail, cable, radio, or any other means, to be censored 

80 

under such rules and regulations as he might establish. President 

Wilson thereupon, by executive order based upon this act, created 

s Censorship Board, composed of representatives of the Secretaries 

of War and Navy, the Postmaster General, the War Trade Board, and 

the chairman of the Committee on Public Information, to control 

81 

ell such communications. 

Under the direction of this board, the cable censorship 
wes tightened, and a great many persons, including some American 
citizens, were denied the use of the cables altogether.®^ The 
censorship thus exercised seemed to be based Ln part on statutory 
authority, but chiefly on the authority of the President alone, 
acting in pursuance of his powers as Commander-in-Chief. 

In addition to giving the President complete rover to cen- 
sor all communications of every sort between this country and a 



77 Official Bulletin , June 5, 1917. 

78 Ibid . , July 18, Jul;/ 25, 1917. Up to that time, the cable 
censorship had extended only to South and Central America, llexico, 
and the Orient. 

79 Public No- 91, 65 Cone-., in Wigmore, op. cit .. 543-561. 

80 Sec. 3, CI. (d). 

81 Executive order o-f Oct. 12, 1917. Official Bulletin , Oct. 
15, 1917. 

82 See a. i. Times . Nov. 9, 1917. 

83 Official Bulletin . May 21, 1918. The cable censorship 
ceased July 23, 1919, by order o^ the President. IT. Y. Times Cur - 
rent Hist. Mag. , X, 410 (Sept. 1919). 



229 



foreign country, the Trading with the Enemy Act vested him with con- 
siderable power over the foreign language press of the United States 
requiring these newspapers, except by license from the President , to 
file before publication a "true and complete" translation of "any 
news item, editorial, or other printed matter, respecting the 
Government of the United States, or of any nation engaged in the 
present war, its policies, international relations, the state or 
conduct o* the war, or any matter relating thereto." 84 Provisions 
of the Espionage Act had likewise declared non-mailable every sort 
of publication "containing any matter advocating or urging treason, 
insurrection, or forcible resistance to any law of the United 
States." 86 

To the executive authorities charged with the enforcement 
of these provisions was left the exact determination of what was to 
constitute such non-mailable matter, and Postmaster General Burleson 
in a public statement, defined the position of the Administration 
as follows: "We shall take care not to let criticism which is per- 
sonally or politically offensive to the administration affect our 
action. But if newspapers go so far as to impugn the motives of 
the Government and thus encourage insubordination, they will be 
dealt with severely. For instance, papers ra8y not say that the 
Government is controlled by Wall Street or munition manufacturers, 
or any other special interests. Publications of any news calculated 
to urge the people to violate law would be considered grounds for 
drastic action. We will not tolerate campaigns against conscription 
enlistments, S8le o^ securities, or revenue collections t We will 
not permit the publication or" circulation of anything hampering the 



84 Sec. 19. 

85 Act of June 15, 1917 (Title XII, Sec. 2) 



230. 



war's prosecution or attacking improperly our allies." 

The President's powers of censorship appear therefore 
to he hased in part on his constitutional position as Chief Execu- 
tive and Commander-in-Chief, in part on definite statutory authority. 
Through his power to interpret and enforce the statute law, the 
President is enabled to exercise a considerable measure of control 
over the expression of opinion in time of war. When to this is 
added the powers of censorship and control exercised by the authori- 
ty of the President alone, not only during the recent war but pre- 
viously as well, the President's power in this regard would seem 
to be limited in practice only by the extent of the necessity, as 
Judged by him. 



86 Statement of Oct. 9, 1917, quoted in War Cyclopedia (1st ed.) 
L63. This was supplemented by another statement to the seme ef- 
p ect, issued in a letter of Oct. 22, 1917. See text in Willoughby, 
jpyernment Organization in Var Time and After . 48-49. 



231 



Chapter XII. 
Powers of Economic Control . 

"This is a war of resources no less then of men, perhaps 
even more than of men", said President Wilson during the course of 
the recent war;"*" and the extent to which the economic resources of 
the belligerent nations were placed under government control i& 
one of the most striking snd unprecedented features of the world 
war. 

In the United States, it has become a well-established 

principle o^ constitutional law that businesses affected with a 

public interest ere subject to government regulation, even in time 

of peace. It hes likewise been long recognized that the property 

rights of private individuals must yield in time of war to the mili- 

tery needs of the nation. Thus, during the Revolution, dictatorial 

powers were et various times conferred upon General Washington "to 

take, wherever he may be, rhatever he may want for the use of the 

army, if the inhabitents will not sell it, allowing a reasoneble 

price -Por the seme." There was some attempt at price-fixing dur- 

4 

ing the same war, and there were many resolutions recommending and 



1 Statement on taking over the railroads, Dec. 26, 1917. Of - 
ficiel Bulletin, Dec. 27, 1917 



2 German Alliance I n e . Co. v. Lewis , 233 U.S., 389,411 (1914). 

3 Resolve of Dec. 27, 1776. See also resolves of Sept. 17 & 
Nov. 14, 1777. Jour. Cont. Cong. , VI, 1045; VIII, 752; IX, 905. 

4 A resolution of llov. 22, 1777, recommended that the states 
enact price-fixing legislation, "in order to introduce immediate 
economy in the public expence, the spirit of sharping and extortion, 
and the rapid and excessive rise of every commodity being confined 
within no bounds"; and a resolution of Jan. 15, 1778, empowered the 
Board o-p War to limit the prices to be given for wheat and flour. The 
repeal of all such price-fixing legislation was recommended June 4, 
1778, the resolution declaring that "it hath been found by Experience 
that Limitations u^on the Prices of Commodities ere not only ineffec- 
tual for the Purposes proposed, but likewise productive of very evil 
Consequences to the great Detriment of the public Service and grievoif|B 
Oppression of Individuals." Ibid . , IX, 957 ;X, 55; XI, 569, 570. 



authorizing the "impressment" supplies of all kinds needed for 

5 

the army, including "wheat in the sheaf". 

The entry of the United States into the world war, requir- 
ing the mobilization, not only of the military and naval forces of 
the nation, but of its every economic resource as well, emphasized 
the fact that in time of war the constitutional principle of govern- 
ment regulation and control may be extended to cover practically 
every enterprise and activity within the country; that "the extra- 
ordinary circumstances of war may bring particular businesses and 
enterprises clearly into the category of those which are affected 
with a public interest and which demand immediate and thoroughgoing 
public regulation."^ 

Control of Food and Fuel . From the first, it was recog- 
nized that the great contribution of the United States to the winning 
of the war must be the supplying of food for itself and the Allies. 
Hence a policy of food control '?as entered upon, centered almost en - 
tire ly in the hands o^ the President . Immediately after the decla- 
ration of a state of war with Germany, Herbert Hoover was selected 

(on April 7) by the Council of National Defense as chairman of its 

1 7 

comr.ittee on food supply and prices, and on May 19 his appointment 
as Food Administrator and a program of food administration were an- 
nounced by President Wilson, even though the administration bills 
vesting the President with powers of food end fuel control had not 
yet been acted upon by Congress. ^ President Wilson followed this 

5 Jour. Cont. Cong. , Ill, 323; VI, 10C1; VIII, 741; IX, 774- 
775, 962, 1043; XX, 516, 598. 

6 Statement of ex-Justice Hughes, quoted in War Cyclopedia 
(1st ed. ) , 96. 

7 Pol. Sci. Quar .. XXXII, Supp. , 25. 

8 N. Y. Times. May 20, 1917. 

9 These administration bills were introduced into Congress the 
latter part of April. 



233 





action with p letter to Mr. Hoover on June 12, 1917, in which he 
stated that the saving of food and the elimination of waste admitted 
of no further delay, and therefore, without waiting- for the legis- 
lation which he considered desirable, he vested Mr. Hoover with 
"full authority to undertake any steps necessary" for the proper 
organization and stimulation of efforts along these lines. 10 Ac- 
cordingly, conservation campaigns were organized throughout the 
country, voluntary workers were enrolled, and a set of food rules 
were promulgated and issued, 11 all on the authority of the President 
alone. 

Finally, in August, 1917, Congress passed the Food and 
12 

Fuel Control Act, vesting the President with complete control over 
the food and fuel resources of the nation. He was empowered, when- 
ever he should deem it essential, to license the importation, ex- 
portation, manufacture, storage, and distribution of food, feed, 
fertilizer, and fuel, and to prescribe regulations governing the 
businesses so licensed; to fix prices of such food and fuel; to 
requisition such food, fuel, and other supplies, or factories or 
mines in which these are produced, "whenever he shall find it neces- 
sary"; to buy and sell wheat, flour, meal, beans, and potatoes, at 
prices to be fixed by him; to set a minimum guaranteed price for 
wheat (to be not less than $2 per bushel); to regulate the opera- 
tions of boards of trade; to limit, regulate, or prohibit the use of 
foodstuffs in the production of beverages, whether alcoholic or non- 
alcoholic; and, finally, "to make such regulations and to issue such 

10 Official Bulletin, June 16,1917. For statement by Mr. Hoove 
concerning the aims of the Food Administration, see ibid . , June 20,191 

11 Ibid . , Jul:" 7, 1917. These were as yet, however, only for 
voluntary observance. 

12 Act of Aujr. 10, 1917. Public No. 41, 65 Cong., in Wigmore, 
Source-Book of Military Lew and War-Time Legislation . 504-516. 



234. 



orders as are essential effectively to carry out the provisions of 
this Act." 

Under authority of these provisions, President Wilson on 
August 10, 1917 (the day of the passage of the act), again formally 
announced the appointment of Herbert Hoover as Food Administrator 13 
(although Mr. Hoover had been acting as such by executive authority 
since May 19), and turned over to him the immediate administration 
of the act. Steps were also taken at once to exercise tne powers 
conferred by the act and to place the food resources of the country 
under e more thorough system of control. Through a series of pro- 
clamations, the President required licenses of practically every 
sort of business connected with the production and distribution of 
*ood, including- elevators and mills for the storage or distribution 
of wheat and rye; the importation, manufacture, and refining of 
sugar, sirups, and molasses; the importation, manufacture, storage, 
and distribution of more than twenty staple foods; the dealing in 
bread, bakery products, and green coffee; the arsenic, ammonia, 
and fertilizer industries; the trading in farm equipment; stockyards 
and connected businesses. 1 ^ 

Besides inaugurating this system of regulation through 

licensing, the President empowered the Food administrator to limit 
15 

profits, and to requisition such foods and feeds, with their 
storage facilities, as he might deem necessary "for any public use 
connected with the common defense, other than the support of the 
Army or the maintenance o-" the Navy. He guaranteed a minimum 



13 Official Bulletin , Aug. 11, 1917. 

14 U.S. Stats . . 65 Cong.,1 Sess. ,Procs. ,45, 52; ibid. ,2 Sess.,69, 
92,96,107,131,133,158,202,222; Official Bulletin. Oct. 11, 1917, 
Jan. 14, May 15, 1918; N. Y. Times , Oct. 10, Nov. 13, 1917. 

15 Executive order of Nov. 23, 1917. N. Y. Times . Dec. 1,1917, 

16 Executive order of Oct. 23, 1917. Official Bullet in . Nov. 1.1$|17 



fit 



235. 



price for the wheat crops of 1918 end 1919, and ordered the organi- 
zation of a Grain Corporation to purchase, store, and sell this 
wheat, end m8ke the guarantee effective. 16 He limited the alcoholic 
content of malt and vinous liquors to 2.75 per cent, and finally 
brought about total prohibition by forbidding the use of any food- 
stuffs in the product ion of such malt liquors, whether alcoholic or 
nonalcoholic . 

Although most of these war-time restrictions were removed 

20 

within a few months after the signing of the armistice, some of 

them were again revived and enforced about a year after that event, 

when the powers of the Food Administration were transferred by 

executive order to the Attorney General in an attempt to avert the 

21 

sugar famine and to lower the high cost of living. 

Similar ste-os to control the fuel resources of the nation 

were taken by the President under the provisions of the Food and 

Fuel Control Act. Doctor Harry A. Garfield was appointed Fuel Ad- 

22 

ministrator by executive order of August £3, 1917, and empowered 
to carry out the fuel provisions of the act. He explained the pur- 
poses of the Fuel Administration to be "to secure the largest pos- 
sible production of fuel at prices just to the producer end reason- 



17 Proclamations of Feb. 21 & SeiDt . 2, 1918. U. S. Stats .. 65 
Cong., 2 Ses^., Procs., 105, 200. 

18 Executive orders of Au?. 14, 1917 & June 23, 1918. Emer - 
gency Legislation . 174-176; Official Bulletin , June 24, 1918. 

19 Proclamations of Dec 8, 1917 & Sept. 16, 1918. U. S. Stat s . , 
65 Cong., 2 Sess., Procs., 84, 204. These must, of course, be dis-" 
tinguished ^rom the "ar-Time Prohibition Act, passed by Congress. 

20 Most of the licensing requirements were canceled by the 
proclamations of Jan. 7, Jan. 25, & Feb. 11, 1919. U. S. Stats .. 
65 Cong., 3 Sess., Procs., 275, 285, 287. The prohibition regula- 
tions were modified so as to permit the manufacture of near-beer 
and other non- intoxicating beverages, by the proclamations of Jan. 
30 & Mar. 4, 1919. Ibid . , 286, 293. 

21 N. Y. Times . Bov. 22, 1919. 

22 Official Bulletin . Aue% 24, 1917. 



236. 



able to the consumer." ° 

As with regard to the food resources, so the President 
likewise inaugurated a system of licenses for controlling the dis- 
tribution of coal snd coke and the various other fuel products, such 

OA pc 

as fuel oil end natural gas; and fixed the prices to be charged. 
The Fuel Administrator, with the approval of the President, issued 
several very drastic orders for the purpose of conserving fuel, such 
as those for the elimination of electric advertising signs and for 
certain "lightless nights"; and the sensational order of January 

17, 1918, suspending the operation of practically all industry east 
o* the Mississippi River for a period of ^ive days beginning January 

18, and making the following- nine Mondays "heatless days". This 
order was promulgated in s-pite of protests from every part of the 
country, opinions that the order exceeded the authority of the Exe- 
cutive, and an official resolution of the Senate asking for delay 
and an explanation, ' — all of which illustrates clearly the V8st 
war-time power of the President. 

As with regard to the powers of the Food Administration, sc 
those of the Fuel Administration were revived by the President after 
the signing of the armistice and the virtual ending of the war, in 
order to meet a particulpr situation. After having pronounced the 
coal strike called for November 1, 1919, unjustifiable and unlawful, 

I 

and having requested, without success, thst the strike be called off, 
President Wilson, by executive order of October 30, restored the war- 

23 Official Bulletin , Aug. 24, 1917. 

24 Proclametions of Jan. 31, liar. 15, & Sept. 16, 1918. U. S. 
Stats. . 65 Cong., 2 Sess., Procs., 99, 113, 205. 

25 Official Bulletin . Aug. 24, Sept. 6, Oct. 29, 1917. 

26 Ibid. , Kpy. 14. Dec. 15, 1917. 

27 See II. Y. Times, Jan. 17, Jan. 18, 1918. 

28 See President Wilson's st- tement concerning the strike. 
Ibid., Oct. 26, 1919. 



237 



time powers of Fuel Administrator Garfield and gave him full autho- 
rity to use these powers in applying such regulations as he should 
deem necessary to avert a coal famine. Accordingly, the priority 
list of May 25, 1918, was restored, the Railroad Administration was 
vested with power to divert co8l shipments, the Department of Jus- 
tice was charged with the enforcement of the maximum price list, 
drastic restrictions on the use o^coal by "nonessential" industries 
were put into effect, railroad service was curtailed, and rigid 

regulations were applied concerning the distribution of coal to 

29 

consumers, until the strike was called off December 10. 

It should be noted thst all these restrictions and regu- 
lations concerning both the food and fuel resources, were estab- 
lished by order of the President, even after the signing of the 
armistice, by virtue of the "war powers" conferred upon him by the 
Food and Fuel Control Act, a war measure which had not yet exrired. 

Control of Trade end Industry * Congress, by virtue of 

its power over interstate and foreign commerce , may make such 

regulations with regard to both foreign and domestic commerce as 

it may deem necessary or helpful towards the crippling of an enemy 

and the success of a war. It chose to exercise this power during 

the events leading up to the W8r of 1812 and during the war itself 

31 

by passing several embargo and non- intercourse acts. During the 
Civil «^ar, Congress exercised the same power by forbidding all in- 

29 N. Y. Times. Nov. 1, Dec. 2, Dec. 9, Dec. 11, 1919. The 
restrictions were only gradually lifted pfter the calling off of 
the strike. 

30 Constitution . Art- I, Sec. 8, CI. 3. 

31 Acts of Mar. 1 & June 28, 1809; Apr. 4, Apr. 14, & July 6, 
1612; Dec. 17, 1613; Feb. 4, 1615. Annals of Cong . , 10 Cong., 2 
Sess., App., 1824; 11 Cong., II, App., 2508; 12 Cong., II, App. , 
2262, 2269, 2354; 13 Cong., II, App., 2761; 13 Cong., 3 Sess., App., 
1899. Regarding the purpose of these as war measures, see Writings 
of James Madison, VIII, 185-166, n., 188. 



r ' 



238. 



tercourse between citizens of the loyal states and of those in re- 
cto 

bellion, except by license from the President. ~ 

Even without authority from Congress, however, the Presi- 
dent is also vested with considerable power in regsrd to the con- 
trol of trade in time of war. By virtue of his position as Commande 

33 

in-Chief, he may declare a blockade of the enemy's ports, and 
thus cut off completely both the import and export trade with the 
enemy nation. President Polk exercised this power by ordering a 
blockade of the Mexican ports in 1846, 34 President Lincoln of the 
Southern ports in 1861, and President McKinley of certain Cuban 
ports in 1898. 26 It has also been held that the President may, at 
least in the absence of Congressional action. to the contrary, per- 
mit a limited commercial intercourse with the enemy in time of war, 

37 

and impose such conditions as he sees fit. 

During the recent war with Germany and Austria-Hungary, 
President V/ilson never declared a blockade of those countries, as 
he might h8ve done, for the reason that such action would not have 
cut o^f the supplies slipping through neutral countries. Since the 
United States was practically the only source of supply for these 
neutral countries, the problem was more effectively solved by giving 
the President blanket authority to regulate the foreign trade of 



32 Act of July 13, 1861. 12 Stat, at L .. 255, 257 (Sec. 5). 
President Lincoln, by order of Feb. 28, 1862, permitted such inter- 
course under rules and regulations prescribed by the Secretary of 
the Treasury. Works of Abraham Lincoln ( Federal ed. ) , V, 43b. The 
removal of the restrictions so placed was begun immediately after 
the cessation of hostilities (Apr. 29, 1865), and completed by June 
24, 1865. Dunning-, Reconstruction: Political and Economic , 27. 

33 Prize Cases . 2 Elack, 635 (1862). 

34 Richardson, Messages and Papers of the Presidents . IV, 
492, 493. 

35 Proclamations of Apr. 19 & 27, 1861. Ibid . , VI, 14, 15. 

36 Proclamations of Apr. 22 & June 27, 1898. Ibid . , X,202,206 

37 Hamilton v. Dillin , 21 Well., 73, 87 (1874)T~c7. Glenn, 
The Army and the Law, 69-70. 



I 



ot 



239. 



the United States. Under the provisions of the Espionage Act, the 
President was empowered, whenever in his opinion the public safety 
should require, to -forbid the exportation of any articles to any 

38 

country excert under such regulations as he might choose to make. 
Under the Trading with the Enemy Act, he was given similar power with 
res-nect to imports. 

By virtue of this authority, President Wilson at various 
times during the ver proclaimed an embargo on long lists of arti- 
cles, 40 and prohibited the importation of other articles, 4 ^ except 

under a system of licenses which he placed urider the supervision of 

42 

the War Trade Board. In this way he was able to exercise complete 
control over the foreign trade of the United States during the 
period of the war, and thus to prevent supplies from reaching the 
enemy, either directly or through neutral channels. 

In time of war the President also exercises a large mea- 
sure of control over business within the United States, his power 
in that regard being apparently based largely on statutory pro- 
visions, but also being exercised in some instances by virtue of no 
specific authority. For example, President Wilson, immediately upon 
the declaration of a state of war with Germany and on later occasion^ 



38 Act of June 15, 1917. Public No. 24, 65 Cong. (Title VII) 
in Wigmore, otd. clt .. 493. 

39 Act of Oct. 6, 1917. Public No. 91, 65 Cong. (Sec. 11), 
in Wigmore, or>. cit .. 557. 

40 Proclamations of July 9, Aug. 27, Sept. 7, Nov. 28, 1917; 
Feb. 14, 1918. U. S. Stats ., 65 Cong., lSess., Procs., 39, 47, 
50; ibid., 2 Sess., 76, 102. 

41 Proclamations of Nov. 28, 1917; Feb. 14, 1918. Ibid. , 2 
Sess., 77, 103. 

42 Created under authority of the Trading with the Enemy Act, 
end composed of representatives of the Secretaries of State, Trea- 
sury, Agriculture, and Commerce, and of the Food Administrator, the 
Shipping Board, end the War Industries Board. See executive orders 
of Oct. 12, 1917 & Aug. 20, 1918. Official Bulletin , Oct. 15, 1917, 
Sept. 3, 1918. 



J 



240 



pieced restrictions uuon the German insurance comranies doing busi- 
ness in the United States <°nd made regulations with regard to Ger- 
man letters patent, his action in each case being based, not on 

43 

statute, but solely on "the authority vested in me as such'.' 

Considerable power was vested in the President by the 
National Defense Act of 1916, which authorized him in time of war or 
when war is imminent, to order any individual or firm having the 
facilities to comply, to furnish supplies or equipment for the Army 
in preference to any other commitments, at prices named by him; 8nd 
in case of default, to seize and operate the plant. 44 Similar 
power to requisition shipyards and factories for the manufacture of 
supplies needed for the Navy was vested in the President by the 
Naval Emergency Fund Act of 1917. 46 

On July 28, 1917, the War Industries Board was created 
by the Council of National Eef ense , with the approval of the Presi- 
dent, to serve as "a clearing house for the w8r industry needs of 
the Government"; 4 ^ and in March, 1918, its functions were by a mere 

letter of the President continued, expanded, and vested almost ex- 

47 

clusively in the chairman, Bernard M. Baruch. Finally, by execu- 
tive order of May 28, 1918, the President formally made the War 
Industries Board an independent administrative agency acting direct- 
ly under his authority, and thereby created what one writer says 
w88 "in effect an Industries Administration analogous in all essen- 

43 Proclamations of Apr. 6, May 24, & July 13, 1917. U.S. 
Stats . . 65 Cong., 1 Sess., Procs., 10, 25, 40. 

44 Act o^ June 3, 1916. Public No. 85, 64 Cong. (Sec. 120), 
inWiemore, p-p. cit. . 439-440. 

45 Act of Ma . 4, 1917. Public No. 391, 64 Cong. Ibid . , 458. 

46 T .Var Cyclopedia (1st ed.), 293. 

47 See President Wilson's letter o^ Mar. 4, 1918, to Mr. 
Baruch, outlining- the functions of the board and the duty of the 
chairman. Official Bulletin, Mar. 31, 1918. 



tial respects to the Food and Fuel Administ rations previously 

created. . . The Board derived its legal powers directly from the 

President. It therefore had the power to exercise, within its 

field, all the powers of the Presiuent over industry entrusted to 

him by statute or possessed by him in virtue of his position of 

48 

head of the armed forces of the Nation." 

Under the direction of its chairman and upon the sole 
authority of the President, the board assumed a very large control 
the industrial resources the nation. It acted as an agency 
for centralizing the war demands of the several government services; 
purchased supplies for the Allies; created new facilities and new 
sources of supply; determined priorities of production and delivery; 
fixed prices; and sought to secure the elimination of waste and un- 
necessary effort, and the securing of economy of time and materials. 
The chairman was in general reouired to act as the "general eye of 
all supply departments in the field of industry", to be a sort of 
"industrial chief of staff." 

While the various orders and decisions of the board were 
legally only "requests", they were backed by the President's powers 
to requisition factories, to withhold fuel and transportation facili 
ties, and in other ways to compel compliance; so that the 'war In- 
dustries Board was well described as being able to "mold the coun- 
try's industrial system almost as it will", and as "a notable demon- 
stration of the power of war to force concert of effort and collec- 
tive planning with centralized responsibility." 49 Through these 

48 Willoughby, Government Organization in V/8r Time and After , 
76-77; see also C. N. Hitchcock. " The War Industries Board; Its 
Development, Organization end Functions", in Jour. Pol. Econ.T ~XXVI, 
545-565 {June, 1918), esp. 547, 563. 

49 C. IT. Hitchcock, op. cit. , 565, 566. 



242. 



various means, the President was enabled to exercise a complete con- 
trol over all businesses having any relation to war needs, which in 
modern times includes practically the entire business life of the 
n8t ion. 

Control of Property . The President likewise has consider- 
able power in time of war with regard to private property. In the 
United States it has been held that a state of war justifies the 

seizure and confiscation of enemy property found within the borders 

50 

o^ the country, in accordance with which theory the Confiscation 

Acts of the Civil War^ 1 were passed, providing for the seizure of 

rebel property under certain conditions. The general practice of 

nations has, however, brought about the modern rule of international 

law that such enemy property is no longer subject to confiscation, 

but only to sequestration for the period of the war. 

The power of such sequestration might be presumed to rest 

with the President by virtue of his executive authority, without any 

further statutory authorization. All doubt was removed, however, 

during the recent war, by inserting in the Trading. with the Enemy 

Act provisions which empowered the President, through the Alien 

Property Custodian created by that r ct, to take over and administer 

53 

for the period of the war such enemy property as he might require. 
President Wilson carried out these powers through various executive 

50 Brown v. U. S. . 8 Cr., 110, 122, (1814); Miller v. U. S. t 
11 Wall., 268, 305, (18 70); cf. Glenn, The Army and the Lew , 112,115. 

51 Acts of Aug. 6, 1861, July 17, 1862, & Mar. 3, 1863. 12 
Stat , at L, , 31?, 589, 820. 

52" Lawrence, Principles of International Law , 424-429. 

53 See esp. Sees. 6, 7. Wigmore, op. cit ., 548-552. The 
seizure of property by the Alien Property Custodian could not be 
enjoined by the courts, his decisions as to what constituted enemy 
character being held to be unreviewable preceding the transfer of 
the property. Salamandra Ins. Co. v. New York Life Ins. Co. , U. S. 
D. C, S. D. N. Y. (1918). cited in Yale Law Jour . XXVIII, 499 
(Liar., 1919). 



V 



243. 



orders, which fixed the salary of the Alien Property Custodian and 
defined his powers and duties, and which entrusted him with the 
management, administration, and disposition of enemy property of 
all kinds, including such things as real estate, personal property, 
seats on stock exchanges, and businesses of all descriptions In 
short, the Alien Property Custodian was authorized "to step into the 
shoes of the enemy and exercise all the rights and powers with re- 
spect thereto rhich the enemy could exercise if no state of war 
existed." 55 

Other powers with regard to the control of property were 

also vested in the President. Several acts of Congress authorized 

56 

the taking of land for military or naval purposes, under which 

President Wilson seized such property as the Jamestown Exposition 

site and large tracts of land in Maryland, and ordered the residents 

to vacate immediately, the compensation to he determined later. 5 ''' 

58 

Finally, by the Act of May 16, 1918, the President was empowered 
du.ring the war to seize private property of any kind, whether real 
estate, buildings, furnishings, or improvements, "as he may determine 
to be necessary for the proper conduct of the existing war", with 
compensation to be fixed later. Although under this act nothing was 
exempt from being commandeered, its chief purpose was to facilitate 

CO 

the seizure of housing for war workers and government offices, 

54 Executive orders of Oct. 29, 1917; Feb. 26, Apr. 2, July 15, 
July 16, Aug. 29, Sept .12, Sept. 13, Nov. 12,1918. Official Bullet in . Oct . 
31,1917; Mar. 2, July 18, July 23, Aug. 31, Sept . 17 , Sept . 20, 1918 ; Jan. 3, 191!) . 

55 Statement of the Alien Property Custodian (A. Mitchell 
Palmer), in Official Bulletin. Mar. 2, 1918. 

56 Acts of June 15, & Oct. 6, 1917; Apr. 26, 1918. Public 
Nos. 23, 64, 140, 65 Cong. 

57 Proclamations of June 28, Oct. 16, Dec. 14, 1917 ; June 10,1918. 
U. S. Stats . . 65 Cong.,1 Sess . , Procs . , 30 ; ibid. ,2 Sess. , 63,87,146. 

58 Public Ho. 149, 65 Cong. 

59 See statements of Assistant Secretary of War Crowell, in 
U. Y. Times. Mar. 21, Mar. 22, 1918. 



3 9 



244. 



in accordance with which the President crested a Housing Corporation 
as an agency through which the Secretary of Labor might carry out 
the provisions of the act. 60 

By these means the President was enabled to exercise a 
complete control of all private property within the United States, 
whose use might in his opinion benefit the enemy or which he might 
consider essential to the war needs of the country. 

Control of Transportation and Communication . The impor- 
tance of the transportation and communication services in the suc- 
cessful prosecution of war is perhaps second only to that of the 
actual fighting service. The close relation between the operation 
of these lines o-p communication end the military operations, and 
the necessity of securing their absolute control by the military 
authorities, in order to insure the regular and systematic trans- 
portation of troops 8nd supplies, were recognized quite early during 
the Civil War. Congress, by Act of January 31, 1862, ^1 authorized 
the President, when in his judgment the public safety should require 
it, to take possession of any or all telegraph and railroad lines 
within the United States, together with all their equipment and per- 
sonnel; to prescribe rules and regulations for the use of these 
lines; and to place them under military control. 

Accordingly, President Lincoln, by order of February 11, 
1862, appointed D. C. McCallum as Military Director and Superinten- 
dent Railroads, giving him full authority to take possession of 
the railroads end to do "all things that may be necessary and pro- 

60 Executive order of Oct. 29, 1918*. Official U. S. Bulletin , 
Jan. 21, 1919. \ 

61 12 Stat, at I . , 334. By joint resolution of July 14, 1862, 
this ect was declared not to authorize the President to engage in 
any work o^ railroad construction. Ibid . , 625. 



+ 3 + 



245 



per" for the transportation of troops and supplies; 62 and on May 

25, 1862, the President took formal military possession of all the 

railroads in the United States. 63 More than 2,000 miles of railroad 

64 

were operated, mostly in Southern or border states, which were 
turned back to their owners under certain regulations on August 8, 

me. 66 & tt i w 

During the first months of the recent war, an attempt was 
made to meet the transportation needs of the nation by leaving the 
operation of the railroads under private control, but as one system 
under the direction of the Railroads War Board, a special committee 
of the American Railway Association, cooperating with Mr. Daniel 
Willerd, chairman o^ the Transportation and Communication committee 
of the Council of National Defense. 66 This did not prove satisfac- 
tory, however, end before the end of 1917, suggestions were made 
^rom authoritative sources thst the President should take control 
o^ the railroads and operate them for the period of the war, 67 
authority for which he already possessed by virtue of the Army 
Appropriations Act o 47 1916. 68 

Acting under this authority, President Wilson, by pro- 

69 

clamation of December 26, 1917, took possession of all the rail 

and water transportation systems in the United States (excepting 

70 

street-car and interurban lines ), and vested their administration 



62 Richardson, Messages and Papers o^ the Presidents , VI, 101. 
65 Ibid., 113. See also orders of May 26 & July 11,1862. Ibid . , 
113, 116. 

64 Cong. Record . 65 Cong. ,2 Sess. , 2556 , 6923 (Feb. 19, May 13,1918) 

65 Ibid . , 2556 ; Fleming. Document a ry History of Reconstruction . 
I, 205-206. 

66 War Cyclopedia (let ed.,) 229, 273. 

67 See report of Int e rstat e\ ^mmiss ion, in IT. Y. Times . Dec .6.1917 

68 Act of Aug. 29, 1916. U. S. Stats. , 64 Cong.,1 Se ss . , 619 , 64£. 

69 U. S. St a ts. . 65 Cong., 2 Sess., Procs., 89. 

70 By act of Apr. 22, 1918, the President was also authorized to 
take over and operate such of these as might be necessary for the 



146 



in Secretary of the Treasury KcAdoo, who was designated Director 

General of Railroads. Later the President confirmed end continued 

the authority of Mr. McAdoo as Director General, 71 under the provi- 

72 

sions of the Railway Control Act, passed by Congress in order that 
the President's authority might he complete and undoubted. 7S This 
act confirmed the President's power to t8ke over, control, and 
operate the railroads under the act of 1916, authorized him to com- 
pensate the owners and initiate rates, and provided that he might 
relinquish such control at his discretion, but that he might in no 
case zeroise it longer than one year and nine months after the 
declaration of peace. 

Acting under the authority so conferred upon him by the 
President, Director General L.cAdoo immediately assumed active charge 
unified the railroads of the country into one system, made regula- 
tions concerning their operation, named his subordinate officers, 

74 

fixed both interstate and intrastate rates, increased the wages 

of employees provided for the adjustment of labor disputes, and in 

75 

general exercised complete control, not onl;. of the railroads, but 
also of the coastwise steamship lines, ship canals, and express com- 
panies, control of which had later been taken over by the Presi- 



transportat ion of the employees at the shipyards and plants. Of - 
ficial Bulletin . May 7, 1918. 

71 Proclamation of Mar. 29, 1918. U.S. Stats . , 65 Cong. ,2 Sees., 
Procs., 119. 

72 Act of Mar. 21, 1918. Public Ho. 107, 65 Cong., in Wigmore, op . 
cit. , 575-563. 

73 Senator Cummins and others held, for example, that the Pre- 
sident's scheme of compensation to the owners required additional 
legislation, and it was doubted by many whether he had the power to 
fix rates under the act o* 1916. That the President doubted his own 
authority on some of these points is indicated by his statement that 
he intended to recommend additional legislation. See N.Y. Times , Dec . 2 i 1 
1917. 

74 The right to fix intrastate as well as interstate rates was 
upheld in Northern Pacific Ry. Co. v. north Dakota . 250 U. S., 135, 
cited in Am. Pol. Sci. He v .. XIII. 619 (Nov., 1919). 

75 A considerable number of the orders issued by the Director 
General are liste d in E n^y__&_j y^ lj_fljTS J _ j^ Agc a^gj^AfJ l 
fectine- Business. 44-49. 



247. 



dent. 76 

Upon the resignation of Mr. KcAdoo a short time after 

the armistice, the President appointed Walker D. Mines to succeed 

7 7 

him as Director General, and continued through, him to exercise con. 

trol of the transportation systems of the United States with the 

view of rendering- adequate service at a reasonable cost." 7 ^ In his 

message to Congress, May 20, 1919, President Wilson announced his 

intention to return the railroads to their owners ft the end of the 
79 

y ear . but no legislation on the subject of future railroad con- 
trol having by that time been enacted by Congress, he postponed the 

80 

date of return, setting it by formal proclamation at March 1, 1920. 

p-i 

Congress having finally enacted railroad legislation by that date, 
the railroads were then returned as promised. Thus, ^or more than 
two years, more than half of that time after the virtual end of the 
war, the President exercised complete control of the transportation 
systems of the country, a control which he might have extended con- 
siderably longer, on account of the delay in the ratification of the 
peace treaty and the formal declaration of peace. 

With regard to shipping, a large measure of control was 
exercised by the President during the recent war through the Shippin;: 
Board and the Emergency Fleet Corporation, created by the Act of 



76 Proclamations of Apr. 11, July 22, IJov. 16, 1918. U. S. 
Stats . , 65 Cone-., 2 Sess., Procs., 125, 164, 245. 

77 Proclamation of Jan. 10, 1919. Ibid . , 3 Sess., 278. 

78 "Until the signing the armistice the Government's first 
railroad duty was to run the railroads to win the war, but now that 
the war is won, the Government's railroad job is to render an ade- 
quate and convenient transDortat i on service at reasonable cost." 
Statement of Mr. Hines on assuming- office, Jan. 11, 1919, Off icial 
U. S. Bulletin, Jan. 13, 1919. 

79 See his message in United States Bulletin , May 26, 1919. 

80 Proclamation of Dec. 24, 1919. IT. Y. Times , Dec. 25, 1919. 

81 The Esch-Cummins Railroad bill was signed by the President 
Feb. 26, 1920. Ibid . , Feb. 29, Mar. 1, 1920. 



248. 



September 7, 1916. 82 Acting under the direction of the President, 
this board and this corporation had as their war-time task the pro- 
viding of an adequate merchant marine to meet tne extraordinary 
transportation demands of the war and the losses from submarine at- 
tacks. The Shipping Eoard controlled directly the operation of all 
American ocean vessels; and by means of authority delegated to it bj 
executive order, requisitioned all American ships completed or build 

ing during* the war; fixed freight rates, and determined terminal 
83 

charges. The Emergency Fleet Corporation, acting as the construe 
tion agency of the Shipping Board (and, through it, of the Presi- 
dent), added a vast amount of tonnage to the shipping in use dur- 
ing the rar. 84 

Additional shipping wae secured through the seizure of 
enemy and neutral vessels lying within United States ports at the 
outbreak of the war. International law and practice allow a bel- 
ligerent to requisition and utilize such vessels, if needed for war 
purposes, and t-e presumed authority of the President to act 
under this rule was further strengthened by the Joint Resolution of 
May 12, 1917, expressly authorizing him to take over enemy ves- 
sels for use end operation during the war, and by a provision in 
the Emergency Shipping Fund Act o^ June 1; , 1917, empowering him 
similarly to requisition any vessel within the jurisdiction of the 



82 Public i'.o. 260, 64 Cong., in Wigmore, op. cit. , 447-454; 
amended by Act of July 15, 1916, Public No. 198, 65 Cong., ibid . . 
455-457. 

83 See, ^or example, its announcement requisitioning on Oct. 
15, 1917, all American vessels of not less than 2500 tons capacity, 
Q-^icial Bulletin. Oct. 13, 1917. See also executive orders of 
June 18 & Dec. 3, 1918. Ibid . , June 20, Dec. 16, 1918. 

84 Figures for the early months the war may be found in 
War Cyclopedia (1st ed.), 253. 

85 Lawrence, Principles of International Law , 456, 626-628. 

86 Public Res. Ho. 2, 65 Con*?-., in Emergency Legislation. 18. 

87 Public He. 23, 65 Cong., in Wigmore, op. cit ., 482-464. 



j 3L 



249 



United States. Acting- therefore under authority both of internation 
al law end of statute, President Wilson seized the German end Aus- 
trian vessels interned in the ports of the United States, 88 and 
likewise requisitioned the Butch ships lying idle within its juris- 
diction. 89 The docks and terminal equipment of the German steemship 
com^enies were elso taken over, 9 ^ under express statutory authority? 

the compensation therefore being determined by the President after 

92 

the signing of the ermistice. 

It hes already been noted that the Act of Congress eutho- 

rizing military control of the railroads during the Civil war, elso 

authorized the President to assume such control of the telegreph 
93 

lines. " Acting under this euthority, the President, on February 
26, 18G2, took military possession of all the telegraph lines in 
the United States, end appointed Anson Stager Military Superinten- 
dent of these lines, exercising military control during the remain- 
der of the war. It v/as expressly ordered, however, that such con- 
trol wes "not intended to interfere in any respect with the ordinary 
e-^airs o^ the companies or with private business. 

During the recent war, a much more comprehensive control 
wes esteblished over ell the means of communication. As early as 
1912, Congress had authorized the President, "in time of war or 
public peril or disaster", to close, control, or take over and use 



88 Executive orders of May 14, May 16, May 22, June 12, June 
30, July 3, Sept. 27, Nov. 2, 1917. Emergency Legislation , 169-170, 
171-173, 179, 189; N. Y. Times Current Hist. Mag. , VI, 237. 

89 Proclemation of Mar. 20, 1918. U. S. Stats .. 65 Cong., 2 
Sess., Procs., 117. The 87 Dutch vessels thus seized were returned 
in the early part of 1919. Official U. S. Bulletin , Feb. 3, 1919. 

90 Proclamation of June 26, 1918. U. S. Stats ., 65 Cong., 2 
Sess. , Procs . , 160. 

91 Urgent Deficiency Act of Mer. 28,1918. Public Wo. 109, 65 Con;-. 

92 Proclamation of Dec. 3, 1918. U.S. Stats . . 65 Cong., 3 Sess., 

Procs, . 270. 

93 Supre ,244. 

94 ^eiTTTrder of Feb. 25, 1862. Richardson, op.cit . , VI, 108-109. 



I 



250 



95 

all the radio stations within the jurisdiction of the United States; 
and by joint resolution of July 16, 1918, he was further empowered 
to take possession of and to operate, in time of war, any telegraph, 

telephone, marine cable, or radio system, such control not to ex- 

96 

tend beyond the date of the declaration of peace. 

Acting therefore under express statutory authority, Presi- 
dent Wilson, immediately upon the entry of the United States into 
the world rar, directed the Secretary of the Navy to assume control 
of ell the means of radio communication within the jurisdiction of 
the United States. 97 On July 22, 1918, he took over the telegraph 

and telephone systems, vesting their administration in the lostmas- 
98 

ter General; u and shortly before the armistice was signed, he like- 

99 

wise assumed control of the marine cables. 

The war-time control thus assumed of the wire services 
differed from that assumed in the Civil War in that it was not 
strictly for military purposes, but io overcome the difficulties of 
8 competitive system arising out of the war, and "to broaden the 
use o" the service at the least cost to the people. n ^-®® The seizure 
of the cables, though vigorously assailed as an undue exercise of 
executive power, was explained by the President to have been 
necessary in order "to keep an open wire constantly available be- 
tween Paris and the Department of State, and another between France 



95 Act of Aug-. 13, 1912. 37 Stat, at I . , 302 (Sec. 2). 

96 Public Res. IIo . 38, 65 Gong., U. S. stats .. 65 Cong., 2 
Sess., 904. 

97 Executive order of Apr. 6, 1917. Willoughby , Government 
Organization in v'»ar Time and After . 40. 

98 Proclamation of July 22, 1918. U. S. Stats ., 65 Cong., 2 
Sess . , Procs . , 163. 

99 Proclamation of Nov. 2, 1918. Ibid . . 228. 

100 Statement of Postmaster General Burleson on assuming con- 
trol. Official bulletin , July 24, 1918. 

101 See argument o+ er-Justice Hughes. N . Y . T ime s . tec. 28, 
1918. 



251. 



and the Deportment of War, nlU£i and was upheld by the courts as a 
legitimate exercise of his war power. 

Complete control over these various systems of communica- 
tion was exercised by the Postmaster General, acting under the 
direction and authority of the President, extending to the unifica- 
tion of the various competing companies, the ousting of the old 
officers in many cases, and the fixing of rates, both interstate and 
intrastate,-*-^ until the systems were returned to private control!^ 



102 Address to Congress, Dec. 2, 1918. IJ. Y. Times , tec. 3, 

1918. 

103 Commercial Cable Co. v. Burleson, U. S. D. C, S. D. u. Y. 
(1919), cited in Yale Law Jour ., XXVIII, 513 (Mar., 1919). 

104 The President's right to fix both interstate and intra- 
state rates for the wire services was upheld in Dakota Central Tele - 
phone Co., v. South Dakota, 250 U. S., 163 (1919), cited in Am. Pol. 
Sci. Rev. ] XIII, 619 (Nov., 1919). 

105 The cables were, by order of Apr. 29, 1919, returned to 
their owners on May 2, 1919; the telegraph and telephone systems on 
August 1, 1919. United States Bulletin , May 1, 1919; Pol. Sci. Quar , t 
XXXIV, Supp., 25 (Sept., 1919). 



IV. POWERS RELATING TO THE TERMINATION OF WAR. 



253. 



Chapter XIII. 
Power of Terminating- War in the United States . 



There are generally said to be three different ways in 
which a way may be terminated: (l) there may be a simple cessation 
of hostilities on the part of the belligerents; (2) there may be a 
complete subjugation of one of the belligerents by the other, in- 
volving the conquest and annexation of its territory and the ex- 
termination of its government; and (3) there may be a formal re- 
establishment o^ peaceful relations between the belligerents through 
an agreement embodied in a special treaty.^" 

Instances of the first method are rare, and have never 
occurred in the case of wars to which the United States has been 
a party. The second method is more common in the history of na- 
tions, but would seem to be precluded as a possibility on the part 
of the United States, because of the doctrine laid down by the 
Supreme Court that wars of conquest and aggrandizement by the United 
States are unconstitutional.^ A treaty of peace is therefore not 



1 Oppenheim, International Law , II, 275; Lawrence, Principles 
of International Law , 568. 

2" For examples of each of these methods, see Oppenheim, op . 
cit .. II, 275-276, 279. 

3 "The genius and character of our institutions are peaceful, 
and the power to declare war was not conferred upon Congress for the 
purpose of aggression or aggrandizement, but to enable the general 
government to vindicate by arms, if it should become necessary, its 
own rights and the rights of its citizens. A war, therefore, de- 
clared by Congress can never be presumed to be waged for the purpose 
of conquest or the acquisition of territory; nor does the law decl8r 
ing the war imply an authority to the President to enlarge the limit 
of the United States by subjugating the enemy's country. . . He may 
invade the hostile country, and subject it to the sovereignty and 
authority o^ the United State. But his conquests do not enlarge the 
boundaries o^ this Union, nor extend the operation of our institu- 
tions and laws beyond the limits before assigned to them by the 
legislative power." Fleming v. Page , 9 How., 603, 614-615 (1849). 
Cf. 8lso S.E.Baldwin, in Am. Jour. Int .Law , XII, 14 ( Jan. ,1918 ) ; Memoirs 
o* John Quincy Adams . XII, 144 (Jan. 10, 1845). 



254. 



only "the normal method of terminating wer w t and the only method 
heretofore employed in the case of wars in which the United States 
has been a belligerent (excepting, of course, the Civil War), but 
has also apparently been considered throughout our entire history as 
the only possible method under the Constitution. 

Recently, however, strong opinions have been expressed 
that wars may be terminated by the United States in other ways than 
by a formal treaty of peace. Thus, in an address before the Wash- 
ington Commercial Club, March 18, 1919, Senator Lenroot (Wisconsin), 
speaking against the proposed constitution for the League of Nations 
and protesting particularly against the incorporation of that con- 
stitution into the peace treaty, made this statement: "We have ac- 
complished the purpose we had when we declared war and, while it 
would be desirable to have a formal treaty of peace with Germany , 
it is not necessary . We can declare the war ended and go about our 
business, end I confidently predict that this is what will be done 
if the treaty is not ratified by the Senate. "^ A statement by 
Senator Poindexter (Washington), issued on the same day, was to the 
same effect but even more explicit: "If the American delegation re- 
fuses to m8ke peace with Germany, let the Entente make peace with 
Germany, and let Congress assemble and declare peace and pass a law 
to bring the American army home. Congress has the same power to 
declare peace that it has to declare war , and has full control over 
all movements of the army and navy, including the Commander-in- 
Chief." 6 A leading journal likewise expressed the opinion that 
"Congress could at any time by_ simple resolution declare the state 

4 Oppenheim, op. cit . , II, 280. 

5 N. Y. Times. Mar. 19, 1919. 

6 Ibid . . Mar. 18, 1919. 



255. 



of war at an end", and at least one distinguished jurist has con- 
curred in these views, saying- that "peace could, no doubt, also be 

D 

restored by an Act of Congress". 

Moreover, serious attempts have recently been made in 
Congress to assert the power of that body to declare peace indepen- 
dently of a formal treaty. Thus, Senator Knox, on June 10, 1919, 
declared that any attempt on the part of the Peace Conference to 
so intertwine the peace treaty and the covenant o^ the League of 
Nations as to prevent their separation by the Senate, would be met 

with a resolution in Congress declaring the war formally at an 
9 

end. On June 23, Senator Fall (New Mexico) and Senator Edge (New 
Jersey) each offered joint resolutions in the Senate declaring the 
state of war between Germany and the United States terminated; and 
on September 15, Representative Mason (Illinois) submitted a con- 
current resolution in the House declaring peace "with all the 
world." 10 

These resolutions were all allowed to die in committee, 
but immediately after the first rejection of the treaty on November 
19, Senator Lodge, Republican floor leader and chairman of the 
Senate Committee on Foreign Relations, offered a concurrent resolu- 
tion "that the said state of war between Germany and the United 
States is hereby declared to be at an end", while Senator Knox, on 
December 13, offered a joint resolution declaring simply, "That peace 
exists between the United States and Germany." These two resolu- 
tions were taken under serious consideration by the Senate Committee 

7 The Nation, Kay 31, 1919. 

8 S. E. Baldwin, in Am. Jour. Int. Law , XII, 13-14 (Jan. ,1918), 

9 Press report in Chicago Tribune , June 11, 1919. 

10 S. J. Res. 60, Mr. Fall; S. J. Res. 61, Mr. Edge; H. Con. 
Res. 32, Mr. Mason. Cong. Record , 66 Cong., 1 Sess., 1629, 5808. 



256. 



on Foreign Relations , end on December 20, Senator Knox reported 
from that committee a substitute joint resolution, rerealing the 
joint resolution of April 6, 1917, which declared a state of war 
with Germany, and providing that such repeal should be effective, 
with certain stated conditions uron Germany, "upon the ratification 
of a treaty of peace between Germany and three of the principal 
allied and associated powers."-^ 

The expressions opinion noted, the presentation and 



serious consideration of these resolutions 



by 



the responsible leadern 



of the majority party in Congress, 8nd the later unprecedented 

action in actually pressing a similar resolution to a vote, would 

seem to make pertinent a brief examination into the subject of the 

power, in the United States, to terminate war and declare peace. 

Passing over the obviously unsound inference of Senator 

Poindexter that Congress might assemble in special session on its 

13 

own motion, without a call from the President, it might seem evi- 



11 S. Con. Res. 17, Mr. Lodge ; S. J.Res.136, Mr. Knox; S.J. Res. 139, 
Mr. Knox. Cong. Record , 66 Cong.,1 Sess.,9321; ibid . , 2Sess. ,540,981. 

12 Immediately after the second rejection of the peace treaty 
by the Senate on Mar. 19, 1920, Senator Knox moved consideration of 
his resolution repealing the declaration of war, and several propo- 
sals were again made in the House for terminating the state of war 
and declaring peace by action of Congress. Apparently .the Republi- 
cans reached an agreement to drop the Knox resolution, and instead tc 
press the Porter resolution (prepared by the House Committee on For- 
eign Affairs), which declared that "Whereas, the President of the 
United States in the performance of his constitutional duty to give 
to Congress information of the state of the Unio. , has advised Con- 
gress that the war with the Imperial German Government has ended, . 
the state of war declared to exist between the Imperial German Goverr 
ment and the people o^ the United States. . .is hereby declared at en 
end." This resolution also provided for the repeal of all the war 
emergency legislation, and gave Germany 45 days in which to declare 

a like termination of the war under the/conditions imposed, with a 
penalty of an economic boycott in case of refusal. In this form the 
Porter resolution was introduced into the House Mar. 31, and passed by 
that body on April 9, by a vote of 242-150, and at this writing (Apr., 
1920) seems likely to pass the Senate also. This action does not af- 
fect the argument of this chapter that such a method of terminating 
war is unconstitutional and of no effect in the United States. See 
text of Porter resolution in N.Y.T ime s , Apr. 1, 1920. 

15 Supra, 254. 



257 



j dent that since Congress has the power to bring about a state of war 

by means of a declaration, which has in every case taken the form of 

an act of Congress or of a joint resolution, 14 it could also, by a 

mere repeal of such declaration, terminate the state of war end 

15 

bring about a state of peace. It should be pointed out in the 
first place, however, that Congress does not have an absolute power 
of repeal; that is, it cannot repeal each end every legislative 
enactment and thereby restore the status quo ante . For example, 
states are edmitted to the Union by means of en enebling act pessed 
through the ordinery legislative channels; but no state can be de- 
prived of its place in the Union by a subsequent repeal or nullifi- 
cation of that eerlipr legislative act o^ admission. 16 Hence, it 
does not necessarily follow that Congress can, by an act of repeal, 
terminate a state of war and declare a state of peace, merely be- 
cause it can, by a legislative declaration, bring about such e state 
of war. 

In the second place, it should be noted that such an act 
of repeal, if it be considered proper at all, would be subject to 
the approval or veto of the President, just as the original declara- 
tion, and hence its enactment would not be so simple a matter as 
these Senators seem to conclude. If such an act were passed over the 
President's veto, the President could still prevent the complete 
restoration of a normal state of peace by declining to resume diplo- 
matic relations with the former enemy or to perform other acts that 

14 The declarations in the cases of the war of 1812, the war 
with Mexico, and the war with Spain were in the form of ects of 
Congress; those in the recent wers with Germany and Austria-Hungary 
in the form of joint resolutions. 

15 This is the particular point emphasized by Judge Baldwin, 
op. cit .. note 8. 

16 See Willoughby, On the Const it u+ ion . I, 426. 



258 



are strictly within his jurisdiction but which presuppose a state 

of peace. A declaration of peace by Congress through a concurrent 

resolution, such as that proposed by Senator Lodge, would clearly 

be unconstitutional, since it would deprive the President of his 

constitutional right to approve or disapprove every act of legisla- 
17 

tive effect. At the most, such a resolution would amount to 

nothing more than an expression of opinion, and could be entirely 

18 

disregarded by the President. Apparently Senator Lodge and the 
foreign Relations Committee of the Senate recognized the impossi- 
bility of any attempt by Congress to declare peace without the co- 

Dperation of the President, when the Lodge concurrent resolution was 

19 

iropped and 8 substitute joint resolution was proposed. 

Finally, while the Constitution specifically gives Congress 
the power to declare war, it does not anywhere expressly confer the 
Dower of declaring or making peace. Hence it is by no means certain 
:hat Congress hae any power, either by a repeal of its original 
ieclaration, or by an independent act, resolution, or declaration, 
bo terminate a state of war and bring about a state of peace. A 
study the debates in the Convention of 1787 will throw some light 
m the intention of the makers of the Constitution in that regard. 

When the power of declaring war was under consideration 
bn August 17, Llr. Pinkney opposed vesting the power in the Legisla- 
ture but ^avored the Senate as the best depository, saying that "it 
ffould be singular for one authority to make war, and another peace". 
S.T. Ellsworth, on the other nana , thought there was a material dif- 
ference between the cases of making v;ar and declaring peace, adding 

17 Constitution , Art. I, Sec. 7, CI. 3. 

18 Cf. Quincy V/right, in Columbia Law Rev ., XX, 126-129, 131 
(Feb. 1920) . 

19 Supra . 256 aad note 12, 256. 



259 



that "war also is a simple and overt declaration, peace attended 
with intricate and secret negotiations." After the power of declar- 
ing war had been definitely voted to Congress, Mr. Butler, evident- 
ly agreeing with Pinkney that the power of making war and peace 
should be in the same hands, moved to add the words "and peace" 
after the word "war", thus giving to the Legislature the power over 
both. Gerry seconded the motion, remarking that the "Senate are 
more liable to be corrupted than the whole Legislature". However, 
the motion was lost by unanimous vote of the States, the Convention 

thus taking 8 definite stand against giving Congress the power to 
20 

make peace. 

The intention of the Convention as to the proper location 
of the power to make peace is further shown in the debates and in 
the actions taken concerning the treaty-making power. The clause 
regarding treaties 8S reported to the Convention read as follows: 
"The President by and with the advice and consent of the Senate 
shall hare power to make Treaties, but no treaty shall be made with- 
out the consent of two thirds of the members present". When this 
came up for consideration on September 7, Mr. Wilson attempted to 
have the concurrence of the House of Representatives added to that 
of the Senate, but his motion was lost, receiving only two affirma- 
tive votes. 21 Madison's motion to except treaties of peace from 
the two-thirds provision, "allowing them to be made with less dif- 
ficulty than other treaties", was adopted unanimously, whereupon he 
moved to authorize two-thirds of the Senate to make treaties of 
peace without the concurrence of the President. "The President", 
he said, "would necessarily derive so much power and importance from 

20 Madison's Journal ( Hunt ed . ) , II, 188-189. 

21 Ibid ., 527-528. 



260 



a state of war that he might be tempted, if authorized, to impede a 
treaty of peace." Mr. Butler seconded this motion and argued 
strenuously for it "as a necessary security against ambitious and 
corrupt Presidents". Mr. Gorham and Gouverneur Morris opposed the 
motion, the latter holding "that no peace ought to be made without 
the concurrence of the President, who was the general Guardian of 
the National interests." c Madison's motion failed, but the next 
day the whole clause was reconsidered, 8nd another distinct effort 
was made, under the leadership of Mr. Sherman, to require the sanc- 
tion of the Legislature to "rights established by a treaty of 
peace." Though seconded by Mr. Morris, Sherman's motion does not 
appear even to have been acted upon, the final 8ction of the Con- 
vention being to adopt the clause as originally reported, the ex- 
ception of treaties of peace from the two-thirds provision being 
stricken out.^ 

The discussion throughout shows very clearly that an over 
whelming majority in the Convention thought as did Ellsworth, "th8t 
there w8s a material difference between the cases of making war and 
declaring peace", that it did not consider Congress as vested with 
the power to make peace unless given express authority. The Con- 
vention declined emphatically to give Congress this express authori- 
ty, but, on the other hand, did consider the power of making peace 
as belonging under the treaty-making power to the President and 

22 Madison's Journal ( Hunt ed .). II, 330. 

23 Ibid . 

24 Ibid. ,333-334. 

25 Ibid . , 188 . "It is not at 811 necessary that the power of 
declaring war and that of making peace are vested by a Constitution 
in the same hands." Oppenheim, International Law. II, 283-284. 
"The power to declare war -does not necessarily include that o^ mak- 
ing 8 treaty of peace. . They are generally associated together, 
though not always". Baker. Halleck' s International Law , I, 329. 



261. 



Senate. This is also the view expressed by Justice Story, when he 

said that the proposal to add the power "to make peace" to the 

power already given to Congress "to declare war" was unanimously 

rejected, "upon the plain ground that it more properly belonged to 

the treaty-making power. Ex- Just ice Hughes recently made practi- 

27 

cally the same statement, and other well known authorities on 

American constitutional law likewise hold that the Constitution 

vests the power of making peace, not in Congress, but in the Presi- 

2ft 

dent and the Senate. 

It is significant in this connection, not only that the 
recent claims to a power in Congress of declaring peace are entire- 
ly without precedent and contrary to the best interpretations of the 
Constitution, but also that such claims are refuted by specific 
declarations by Congress itself. Thus, every important legislative 
enactment of Congress during the recent war which contained any 
reference to the conclusion of peace, shows that Congress itself 
crntemplated no possibility of terminating the state of war through 
its own action. Two of the measures -- the Food and Fuel Control 
Act and the Trading with the Enemy Act -- apparently considered 
the President alone vested with considerable authority in that re- 
gard, the former declarinp that the provisions of the act should 
cease to be in effect "when the existing state of war . . . shall 
have terminated, and the f ?ct and date of such terminct ion shall be 

26 Story, Commentaries on the Constitution . II, 88. 

27 In Central Law Jour ., LXXXY, 206 (Sept. 21, 1917). 

28 For example, Schouler says that the power of Congress under 
the Confederation "embraced clearly the determination of both war 
and peace, while thst of the Congress of our Constitution is in 
expression confined to war alone, since the full treaty-making power 
is lodged by the latter instrument (which makes no mention of de- 
claring peace at all) with the new branch of government, the Execu- 
tive, subject to a two-thirds ratification in the Senete." Consti - 
tutional Studies . 137. 



262. 



ascertained and proclaimed by the President " ; the latter that "the 
words 'end of the war', as used herein, shall be deemed to mean the 
date of proclamation of exchange of ratifications of the treaty of 
peace, unless the President shall , by proclamation , declare a prior 
date . in which case the date so proclaimed shall be deemed to be 
the 'end of the war' within the meaning of this Act." 29 

Other measures specifically contemplated the termination 
of the war by means o* a treaty of peace. Thus, the Emergency Ship- 
ping Fund Act provided that the authority granted in that act to 
the President should cease "six months after a_ final treaty of 
peace is proclaimed between this Government and the German Empire"; 
the Railway Control Act required that Federal control should not 
continue longer than "one year and nine months next f piloting the 
date of the proclamation by the President of the exchange of rat if i - 
cat ions o_f_ the treaty of peace " ; the Overman Act was to terminate 
"six months after the termination of the war by the proclamation of 
the treaty of peace , or at such earlier time as the President may 
designate"; and the Control of Communications Act provided that con- 
trol of the telegraph and telephone systems "shall not extend beyond 
the date o 4 * the proclamet ion by the President of the exchange of 
ratifications of the treaty of peace ."3° 

It seems clear, therefore, that a formal treaty of peace 
is the only method contemplated by the Constitution for the termi- 
nation of a foreign war and the restoration of peace, as it has 
heretofore been the only method ever suggested or actually employed 

29 Act of Aug. 10, 1917 (Sec. 24); Act of Oct. 6, 1917 (Sec. 
2). YVigmore, Source-Book Military Law and Y/gr-Time Legislation . 
512 544. 

30 Act of June 15, 1917; Act of Mar. 21, 1918 (Sec. 14); Act 
of May 20, 1918 (Sec. 1); Joint Resolution of July 16, 1918. Wig- 
more, op. cit .. 464, 583, 586, 602. 



263 



in practice. The conclusion of peace rests therefore, in the United 
States, with the President and the Senate, as the treaty-making 
power. 



264 



Chapter XIV. 
Powers with regard to a Treaty of Peace * 

Since the conclusion of a treaty of peace is the only 
method by which a foreign war may be terminated by the United 
States, it is necessary to note the powers of the President in 
that connection. In the first place, while the Senate shares the 
treaty-making power with the President and therefore enjoys con- 
siderable pov.-er in connection with the definitive conclusion of 
peace, certain preliminaries may be undertaken that are within the 
province of the President alone. These are the armistice and the 
preliminary protocol. 

An armistice, strictly speaking, merely provides for a 
temporary suspension of hostilities, but, If general in its scope, 

2 

it is usually entered into "with a view to negotiations for peace"; 

while a preliminary protocol is a preliminary settlement indicating 

the lines along which the peace negotiations are to be conducted. 

The two cannot always be clearly differentiated, however, in that 

the latter may also provide for the suspension of hostilities, and 

both are generally used "as devices of the executive department for 

reaching a basis of negotiations without ewaiting the difficult and 

4 

delayed conferences necessary for the final treaty." Neither re- 
quires the ratification of the Senate before going into effect, each 
being considered as "a proper exercise of his war powers by the Pre- 

1 See preceding chapter. 

2 Lawrence, Principles International Law , 564-567; Davis, 
Elements o^ International Law ( 4th ed .). 341. 

~~3 Cf. Benton, International Law and Dirlomacy of the Spanish - 
American V.'ar , 226 7 228. 
4 Ibid . . 227. 



265 



sident". Both illustrate also the power of the President to enter 
into important international agreements without the consent of the 
Senate, in thst through them he may not only determine as to the 
continuance or termination of hostilities, but may also lay down 
the conditions to he imposed upon the hostile power and practically 
commit the nation to a particular line of policy in the final peace 
conference . 

President Madison sought in this way to bring about a 
termination of the war of 1812 almost as soon as it was begun. 
Jonathan Russell, the American charge d'affaires in London, acting 
under instructions from Secretary of State Monroe issued only a few 
days after the declaration of wftr by Congress, made two attempts 

7 

to arrange an armistice in the early fall of 1812. Although these 
attempts were unsuccessful, the British government declining to 
consent to an armistice on the conditions named, they were useful 
in clarifying the issues of the war, in that Monroe selected from 
among the "many just and weighty causes of complaint against Great 
Britain", the orders in council and the impressment of seamen as 

Q 

those "considered to be o* the highest importance." 

The power of the Executive thus to define the issues of 
the war and to determine how far to yield in the interests of peace, 
was further illustrated when the counter-proposal of the British 
Government for a cessation of hostilities was rejected, on the 
ground that it was based on the repeal of the orders in council 

5 Foster, Practice of Diplomacy , 318. 

6 Monroe to Russell, June 26, 1812. Am. State Papers , For . 
Rel . , III, 585-586; see also instructions of July 27. Ibid . , 586. 

7 Russell to lord Castlereagh, Aug. 24, Sept. 12, 1812. Ibid. 
589, 591. 

8 Ibid . . 585. 



£66. 



alone and disregarded the question of impressment. "It will be 
seen from this", says an eminent historian, "that Madison and Monroe 
continued the war on the question of impressment alone. 

The power of the President, as Commander- in-Chief , not 
only to terminate hostilities by arranging- an armistice, but also to 
formulate such conditions for the armistice as to bind the nation 
to a particular policy in the peace conference, was clearly demon- 
strated in 1898, when in response to the Spanish request for terms 
of peace, President McKinley embodied his conditions in the protocol 
of August 12, which he authorized the Secretary of State to sign on 
the part of the United States. 

This protocol not only provided for an immediate suspen- 
sion of hostilities end a subsequent peace conference to arrange the 
final terms, but stipulated that Spain shorld relinquish her claim 
to sovereignty over Cuba, cede Porto Rico and an island in the 
Ledrones to the United States, and evacuate these places immediately 
The final disposition of the Philippines was to be left to the peace 

conference, the United States meanwhile to occupy and hold the city, 

12 

bay, and harbor of Manila. The protocol thus took on the charac- 
ter of much more than a preliminary agreement governing the termina- 
tion of hostilities, but committed the United States to a certain 
very definite policy in the peace conference and approached very 
closely to a definitive treaty of peace. *^ 

Similarly, the armistice conditions imposed upon Austria- 



9 Warren to Monroe, SeDt. 30, 1812; Monroe to Warren, Oct. 27 
1812. Am. State Papers , For. Rel . t III, 595-597. 

10 Chenninjr, History of the United States , IV, 480; cf. Updyke 
Diplomacy of the War of 1812 , 136-159. 

11 For. Rel. 1898 . 825. 

13 Cf. J. B. Moore, in Pol.Sci.Quar . . XX, 391-392; Moore's Di- 
gest, V, 213; Crandall, Treaties: Their Making and Enforcement , 103-104 

12 See text of protocol. For. Rel. 1698 . 828-830. 



267. 



Hungary and Germany "by President Wilson in 1918, ^ not only laid 
down terms which safeguarded the victory of the Allies in a military 
and naval sense, but, as embodying the famous "fourteen points", 
were generally understood to have committed the United States to a 
definite political policy in the peace conference, for his supposed 
departure from which in that conference the President has since 
undergone the bitterest criticism. 

Having the power, through the armistice and the prelimi- 
nary protocol, thus to terminate hostilities and to a considerable 
extent define the future peace conditions, the President may also, 
on his own authority alone, undertake measures which presume the 
virtual ending of the war and the existence of a state of peace. 
President McKinley, having proclaimed the suspension of hostilities 
with Spain in accordance with the protocol of August 12, 1898, im- 
mediately raised the blockade of the ports of Cuba and Porto Rico, 

and on August 18 ordered 100,000 of the volunteers or as near that 

15 

number as practicable, to be mustered out. President Wilson like- 
wise ordered a general demobilization immediately after the signing 

1 6 

of the armistice, and lifted many of the war-time restrictions 
before the definitive conclusion of peace,- 1 - 7 thus assuming, as he 
might, th8t the armistice wss something more than a mere suspension 
of hostilities. 

It might seem that the President, through such exercise 



14 The texts o* these may be conveniently found in N. Y. Times 
Current History Mag. . IX, 364-366, 396-397 (Dec, 1918). 

15 Message to Congress, Dec. 5, 1898. Richardson, op. cit ., 
X, 174-175. 

16 Demobilization was virtually completed by Oct. 14, 1919, 
the army having by that time been reduced to less than 300,000 men. 
N. Y. Times Current Hist. Llag.. XI , 230 (Nov., 1919). 

17 Such as restrictions on the use of ^ood and fuel, on trrde 
and industry, and on the manufacture of beverages. Supra , 235, 
note 20. 



268 



of power ps has been noted, could, of his own authority alone, not 
only terminate hostilities, but bring about an actual termination of 
the state of war. Thus, in 1896, many neutral powers treated the 
protocol of August IE as practically ending the war between the 
United States and Spain, and permitted public vessels of the United 
States to enter and use their ports freely as in time of peace."'*® 
So also it was reported in March, 1919, that the American peace 
delegation at Paris was considering bridging over the period be- 
tween the signing of the peace treaty and its ratification by the 
Senate, by a. modus vivendi declaring the war ended as of date of 

signature, so as to terminate the war legislation and enable an 

19 

earlier return to normal conditions. 

It was even solemnly held in a court decision rendered at 

about the same time, that the "war was brought to a close when the 

armistice was signed", because President Wilson, in announcing the 

armistice to Congress, used the words, "The war thus comes to an 
20 

end." In numerous other cases involving war-time legislation, 

eminent counsel argued that the state of war was terminated by the 

signing of the armistice and other acts of the President; and on 

June 10, 1919, Representative Dyer (Massachusetts), a member of the 

House Judiciary committee, cabled the President to "exercise the 

authority which I am sure you possess" to proclaim the war ended 

and demobilization completed, and thereby prevent war-time prohibi- 

21 

bit ion from going into effect. 

18 Moore's Digest , VII, 325. 

19 Associated Press dispatch, Mar. 15, 1919. 

20 Federal Judge Walter Evans, in a decision handed down in 
Louisville, Ky. , liar. 24, 1919. Reported in Chicago Tribune , Mar. 
25, 1919. The peace resolution passed by the House, Apr. 9, 1920, 
likewise referred to these words of the President as authority for 
declaring the war ended. Supra , 256, note 12. 

21 Chicago Tribune, June 11, 1919. 



269 



However, the better opinion is that the President alone 
cannot, by a protocol, proclamation, or other act, bring about the 
termination of a state of war and the existence of a state of peace. 
Thus, Attorney-General Griggs in 1898 held that the signing of the 
protocol of August 12 and the suspension of hostilities did not 

22 

terminate the state of war between the United States end Spain; 
Attorney-General Palmer likewise ruled in 1919 that a state of war 
could not be terminated by act of the President alone, but only by 
8 treaty of peace; and President Wilson himself declined to at- 
tempt any such exercise of pover, declaring "not only that in my 
judgment I have not the power by proclamation to declare that peace 
exists, but that I could in no circumst ences consent to such a 

24 

course prior to the ratification of a formal treaty of peace." 

Finally, the courts have definitely decided that the sign- 
ing of an armistice is not equivalent to the termination of a state 
of war. Judge Hand, of the United States District Court of Uew 
York, pointed out that "so long as the treaty of peace is not rati- 
fied, there is some chance the resumption of hostilities", even 

25 

though that chance might be very slight; while the Supreme Court 

likewise unanimously held that the cessation of hostilities in the 

recent war by means of the armistice did not mean the "conclusion 

of the war", and pointed to various "facts of public knowledge" 

26 

which showed the war emergency to be still in existence. 



21 Chicago Tribune . June 11, 1919. 

22 22 Op. Atty. Gen . , 190, 191. 

23 See his ruling on the War-Time Prohibition Act, in IT. Y. Times 



Aug. 28, 1919; also his telegram to Judge Evans, in case cited in 
this chapter, note 20. 

24 Letter to Senator Fall, Aug. 20, 1919 . IT .Y. Times , A ug. 22. 1919 . 

25 See decisions rendered by him, in cases involving the vali- 
dity of wartime prohibition and wartime cable control, Jan. 20 & 
Aug. 20, 1919. IT. Y. Times , Jan. 21, Aug. 21, 1919. 

26 Hamilton v. Kentucky Distilleries & Warehouse Co. , decided 

Dec. 15, 1919, upholding , velidlty of .the War Time Prohibition Act. Re- 
po rted' in Chicago Tribune, Deb, lb. 1919. 



270 



In the definitive conclusion of peace through a formal 

treaty, the President, although he is of course required to obtain 

the tdvice and cohsent" of the Senate before putting a treaty into 
27 

effect, has practically complete control of all the other functions 

E8 

and processes of tresty-msking. In the first place, the President 
alone may appoint the commissioners who are to negotiate the treaty 
of peace, and he is not required to submit their nominations to the 
Senate for confirmation. This power rests upon the now well-recog- 
nized right of the President to use, at his discretion, special 

agents o^ a diplomatic or semi-diplomatic character -- a right which 
29 

one writer points out has four bases: (l) a presumptive legal 

basis in the acts of Congress giving the President a contingent fund 

which he may expend for foreign intercourse without specific ac- 
30 

counting; (2) the recognized right of the President to take the 

31 

initiative in foreign affairs; (3) the general practice of govern- 



27 Constitu" ion . Art. II, Sec. 2, CI. 2. 

28 "As for making and declaring peace, the power . . . per- 
tains no longer to Congress, but is lodged for negotiation and 
conclusion in the President." Schouler, Constitutional Studies , 
140. "As the war power is shared between the President and Gon- 
gress, but Congress does not sh?re in the executive power, the 
breadth of the President's prerogatives as to the closing of war 
becomes of special importance. The limits imposed directly by 
the Constitution are few, its main one being the requirement of 
the consent o* the Senate ... To make a declaration of war re- 
quires the assent of Congress as well as of the President. To 

end a war, it is enough for him to obtain the assent of the Senate, 
if he acts under the treaty-making power." S. E. Baldwin, in 
Am. Jour. Int. Law , XII, 13. 

29 H. L~, 7/ r ist on, "President ial Special Agents in Diplomacy", 
in Am. Pol. Sci. Rev . , X, 481-499, esD. 482-488. 

30 As the earliest acts of this sort may be mentioned the 
Acts of July 1, 179C; tfeb. 9, 1793; May 1, 1610. Annals o^ Cong .. 
1 Cong., II, A P p. f 2232; 2 Cong., A pp., 1411; 11 Cong., II, 

1pp., 2585. 

31 Suprp . ch. II. 



271. 



32 35 
ments under international lew; and (4) necessity. 

Prior to 1815, the names of such special agents or com- 
missioners chosen to negotiate treaties "'ere generally submitted 

34 

to the Senste for confirmation. According to this practice, 
President Lledison even summoned the Senate in special session in 
May, 1813, to consider his course in accepting the Russian offer of 
mediation, and to confirm the peace commissioners he had already 
appointed and sent on their way. The Senate confirmed the nomina- 
tions of John Quincy Adams and Senator James Bayard, hut rejected 
that of Secretary of the Treasury Albert Gallatin, on the ground 
that "in the opinion of the Senate, the powers and duties of the 
Secretary of the Department 4 * the Treasury and thos<= of an Envoy 

Extraordinary to a Foreign Power, are so incompatible that they 

35 

ought not be and remain united in the same person." * Upon the 
failure of this attempt to open peace negotiations, the President 
appointed another peace commission in January, 1814, again submit- 
ting the names to the Senate for confirmation. 

Since 1815, however, it has been very unusual to submit 



32 "There seems to be no reason why the government of the 
United States cannot, in conducting its diplomatic intercourse 
with other countries, exercise powers as broad and general or as 
limited and peculiar, or special, as any other government. . . 
In fact, there has been no limit placed upon the use of a power 
of this kind, except the discretion of the sovereign or ruler 

of the country." Report of Senate Committee on Foreign Rela- 
tions, 1693, quoted by H. M. Wrist on, op. cit ., 486-487. 

33 See H. L. Wriston, op. cit ., 487-488. 

34 Crandall, Treaties: Their leaking and Enforcement , 75-76. 

35 Updyke, Diplomacy o^ the '.ar o J 1 812, 146-148. 

36 This commissinn consisted of John Quincy Adams, James 
Bayard, Henry Clay, Jonathan Russell, and Albert Gallatin, the 
first 'our names being submitted to the Senate on Jan. 14 and 
confirmed Jan. 18. Gallatin's name was added on Feb. 8, and 
confirmed the next day without serious opposition, he being no 
longer in the Cabinet. Ibid . , 167-168. 



272. 



the appointments of treaty negotiators to the Senate at all, Bn ^ 

especially so with regard to peace commissioners. President Polk 

even felt it necessary to keep secret for a time his selection of 

Nicholas Trist as peace commissioner in 1847, although he vested 

Trist with unusual powers, not only to accompany the army and 

negotiate peace at a favorable opportunity, but also to control 

39 

the military and naval operations. His later appointments of 

Sevier and Clifford to negotiate the final treaty were, however, 

submitted to the Senate for confirmation, though it should be noted 

that Sevier was in reality selected for the permanent post of 

minister to Mexico with authority to complete the peace treaty 

negotiations, and that Clifford was added merely because of Sevier's 
40 

illness. President McKinley likewise appointed the peace com- 

41 

missioners of 1898 without consulting the Senate; while President 
Y/ilson,in 1918, although Congress was in session, merely "announced" 
the peace delegation in a "..hite House statement, and took the un- 



37 For instances of such appointments without the consent of 
the Senate, see inoore's Digest , IV, 453-457. 

38 Diary of James K. Polk , II, 468, 483; cf. II, 262, 268,273. 

39 "Should he TTrist) make known to you in writing that the 
contingency has occured in consequence of which the President is 
wi ' ling that further active military operations should cease, you 
will regard such notice as a direction from the President to sus- 
pend them until further orders from this department." Secret or- 
ders to Gen. Scott and Commodore Perry, quoted by H. M. Wriston, 
op. cit . , 495 . 

40 Diary of James K. Polk , III, 378-383, 389-391. The treaty 
had -been ratified by the Senate, liar. 10, 1848, with amendments 
that required new negotiations. 

41 However, fch« commissioners were appointed and the treaty 

of peace completed during a recess of Congress. But in 1901, Presi- 
dent LIcXinley, without consulting the Senate, although it was then 
in session, appointed W. W. Rockhill as special commissioner to 
China, invested with full po- T er to negotiate with the representa- 
tives of the other allied powers and of China concerning a settle- 
ment o* the questions arising out of the Boxer Rebellion. 



273, 



42 

precedented step of including- himself. 

Having the power to appoint peace commissioners with or 
without the consent o^ the Senate, the President is not restricted 
in his choice, but may select whom he will, without qualification. 
Public opinion seems to expect, however, that distinguished men of 
both parties should be chosen, and one of the severest criticisms of 
President Wilson was his apparent selection of men who would reflect 
merely his ov r n personal views. President Polk likewise found great 
difficulty in selecting a commissioner satisfactory to the country, 
probably one reason for the choice of a person in a somewhat obscure 
posit ion. 

There seems also to be a considerable bod;; of opinion, 
that, since the Senate is constitutionally a coordinate part of the 
treaty-making power, it should be represented on the commission to 
negotiate peace. President Madison probably deferred to this 
sentiment in appointing Senator Bayard, a Federalist, and henry Clay 
formerly in the Senate but at that time Speaker of the House, to 
the peace commission of 1814. President McKinley went so far in 
that respect as to give the Senate a majority on the peace commis- 



42 Together 'with Secretary of State Lansing, Henry 'White, 
Edward M« Mouse , and Gen. Tasker H. Bliss. Official U. S. Bulletin , 
Nov. 19, Nov. 30, 1918. President "ilson's decision to participate 
personally in the peace negotiations at Paris raised again the in- 
teresting, though purely academic question as to the President's 
constitutional right to leave the jurisdiction of the United States 
during his term of office. It is worthy of note that Hamilton's 
plan for a constitution definitely contemplated the consent of Con- 
gress for the absence of the President from the United States, and 
even then for the exercise o^ his powers by the Vice-President 
during such absence. See Elliot ' s rebr tes , V, 567. The law and 
precedents governing the President's right to leave the country 

ere discussed by Park Benjamin, in The Independent . Mar. 29, 1919. 
See also opinion o^ ex-Attorney General Wicker 8 ham, in IT. Y. Times . 
Nov. 27, 1918; and Taft, Our Chief Magistrate and His Powers . 50-TT. 

43 Diary of James K. Polk , II, 466. Nicholas Trist was chief 
Clerk o^ the be pert me nt of State when appointed peace commissioner. 



274. 



sion of 1898; and President Wilson's entire disregard of the 
Senate in making- up the peace commission in 1918 called forth es- 
pecially severe criticism, as though it were an utter contempt for 
the constitutional position and rights of that body. 

As a matter of fact, though Senators have b^en quite com- 
monly appointed on commissions to negotiate treaties, including 
treaties of peace, there is excellent authority for the view that 
their appointment to such missions is not only inexpedient and im- 
proper, but also contrary to the constitutional principle that no 

civil officer of the United States shall at the same time be a mem- 

45 

ber of either house of Congress. President Monroe, for example, 
stated in 1818 that he "did not approve the principle of appointing 
members of Congress to foreign missions, but, as it had been es- 
tablished in practice from the first organization of the present 
Government, and, as tne members of Congress would not be satisfied 

with the opposite principle, he did not think it proper to make it 

46 

a rule for himself." 

The Senete itself has upon occasion taken a positive 
stand ageinst the participation of members of that body in treaty 
negotiations. Thus, in 1898, the Senate declined to confirm the 



44 Cushman K. Davis (Minn.), Republican, chairmen of the 
Senate Committee on Foreign Relations; William P. Frye (Me.), 
Republican; and George Gray (Del.), Democrat. The other members 
of the commission were William R. Dey, who resigned es Secretary 
of State in order to head the commission, and White lew Re id, for- 
mer minister to France. 

45 "No senator or representative shall, during the time for 
which he v:es elected, be appointed to any civil office under the 
authority of the United States, which shell heve been created, or 
the emoluments whereof shell have been increesed during such time; 
and no person holding eny office under the United Stetes shell be a 
member o f either House during his continuance in office." Consti - 
tution , Art. I, Sec. 6, CI. 2. 

46 Memoirs of John Q,uinc.v Adems , IV, 72. 



JJ 



275 



nominations of Senators Hoar, Cullom, and Morgan to the Hawaiian 
Commission "upon the ground that it would no longer consent to the 
selection of members of this body to negotiate important treaties 

47 

that were to be reported to the Senate." In fact, the feeling in 
the Senate was st that time so strong against that practice that the 
Judiciary Committee "almost unanimously" contemplated reporting a 
bill or resolution prohibiting it for the future, and only refrained 
from doing so because it was thought that such action might be con- 
strued as a discourtesy to those Senators who had acted under such 
appointments. The committee instructed Senator Hoar, however, to see 
the President and say that it hoped the practice would be discon- 
tinued; to which suggestion the President responded by assuring 
Senator ^oar thst it would not occur again, although he called at- 
tention to the difficulty of getting suitably qualified men outside 

48 

0"" the Senate or House. 

In 1903 the question again came before the Senate, and the 
judgment war almost unanimously as before. Senator Tillman said: 
"7,'e had the Paris treaty or the Spanish or Philippine treaty negotiat 
ed by Senators whose votes, no doubt, were influenced by the fact 
that they were on that commission. I do not see why we should pal- 
ter with this thing any longer. Probably we cannot convince the 
Executive that this practice is improper and contrary to the will of 

47 Statement of Senator Hale, in U. S. Senate, Feb. 26, 1903. 
Cong. Recor d, 57 Cong., 2 Sess., 2695. The Senators nevertheless 
served, their -position beine- stated by Senator Cull^m as follows: 
"We went out by appointment of the President; but there was a doubt 
about it, end the Judicial Committee of the Senate, in view of 

the doubtful attitude which we occupied as receiving appointments 
from the President while being members of the Senate, thought it 
best not to act upon our confirmation at all; and they were not 
acted uiDon. V/e were nev^r confirmed by the Senate as a matter of 
fact." ' Ibid . , 2695. 

48 " TbTd . , 2695, 2698. 



276 



the Senate, unless it is forbidden by lew." He therefore offered 
an amendment to the provision under discussion providing, "that in 
making appointments to any such commission no Senator or Member of 
the House shall be eligible." 49 

Although the amendment went out on a point of order, Sena- 
tor Hale protested vigorously against the practice; Senator Bacon 
said it was "distinctly in opposition to the express policy, if not 
the express command of the Constitution o-p the United States"; 
Senator Hoar concurred in this view, and in addition stated that 
"hardly a more dangerous practice can be conceived than this one"; 
and Senator Allison said, "I am in sympathy with the general sug- 
gestion. . . I do not believe a Senator or Representative should 
50 

be appointed." Senators Foraker and Teller were not ready to 

restrict Senators from serving on such commissions under all circum- 

51 

stances, but thought the practice as a rule "reprehensible". Of 

all those who participated in the discussion, onl^ Senators Aldrich, 

Piatt (Connecticut), and LIcComas defended the practice, and opposed 

52 

any limitation on such service by members of the Senate. 

It would therefore seem that the recent outbursts of 
criticism against President V/ilson, in the Senate and elsewhere, 
for his failure to appoint members of that body to the peace com- 
mission, are based on rather flimsy pretexts; and that, as a matter 
of fact, while criticism of the personnel of the commission might be 

49 Cong. Record , 57 Cong., 2 Sess., 2696. The provision under 
consideration was one in the Sundry Civil 'bill authorizing the ap- 
pointment o"" a commission to negotiate concerning rates of exchange 
between silver and gold using: countries. 

50 Ibid. , 2695, 2696, 2697, 2698. 

51 Ibid . . 2696, 2697. 

52 Ibid . . 2696, 2698. Apparently the positive assurance by 
Senator Aldrich that no such appointments would be made in the case 
under consideration had a great deal to do with the abandonment of 
a specific prohibition. 



277. 



justified on other grounds, that based on sny constitutional or in- 
herent right o^ the Senate to representation on such commission is 
condemned, both by the Constitution and by the unprejudiced opinion 
of the Senste itself. 

In the second piece, the President has entire control of 
the peace negotiations on the part of the United States. He lays 
down the principles that are to form the basis of negotiation, he 
determines whether to yield or to stand firm on a disputed point, 
and he decides the wisdom and expediency of compromises. The power 
and responsibility of the President in these respects are the same, 
whether he directs the negotiations from Vv'ashingt on, as did LIcKinley 
in 1896, or himself participates in the peace conference, as did 
Wilson in 1919. His power is only the more strikingly apparent in 
the latter case. 

President McKinley was constantly in touch with the peace 
commissioners at Paris in 1898, and did not hesitate to make new 
demands and impose additional conditions during the progress of the 
negotiations, even though he was not personally present. With re- 
gard to the disposition of the Philippines, for example, concerning 
which the Spanish commissioners had expected an opportunity to ne- 
gotiate, President McKinley' s original instructions were to demand 
the cession of the island of Luzon only. Later, however, ad- 
ditional instructions were sent that "the cession must be of the 
whole archipelago or none. The latter is wholly inadmissible, and 

the former must therefore be required." The American commission 

53 

was divided as to the wisdom and justice of this demand, and 
sought, moreover, to rest the claim of the United States to any part 



53 See For. Pel. 1898, 932-935, 945-948. 



278 



of the Philippines on the grounds of indemnity, the welfare of the 
islands, the "broken power of Spain", and the "anarchy" that would 
result from our complete withdrawal; while the President apparently 
desired to press the claim "by right of conquest", holding that the 
conquest o p the entire archipelago had been accomplished by Dewey's 
destruction of the Spanish fleet in Manila Bay. In both matters, 
the commission yielded, of course, to the views of the President . ^ 
President Wilson's "domination" o^ the peace commission of 1919 
was not more complete, nor is there anything improper about such 
domination, since it is the President who is alone responsible for 
the results of the negotiations. 

The Senate has, of course, the right to "advise and con- 
sent" to all treaties, and that has sometimes been interpreted to 
mean that the Senate has a right to "advise" and to be consulted 
before or during the course of the negotiations. There have been 
a few occasions upon which the President has sought the previous ad- 
vice of the Senate, or has informed that body as to pending nego- 
tiations. President Polk in 1846 referred to that practice as 
"eminently wise", and said that since the Senate is a branch of 
both the treaty-making and war-making powers, "it may be eminently 
proper for the Executive to take the opinion and advice of that 
body in advance upon any great question which may involve in its 

54 Benton, International Law end Diplomacy of the Spanish-Amer 
ican .Var . 241, 243; See For. Rel. 1698 . 935, 937, 940, 941. A re- 
cent interesting explanation o^ President McKinley'e demand for the 
whole o^ the Philippines is to the effect that while his mind was 
not yet made up on the point, he received a communication from 

Lord Salisbury warning him that Germany was preparing to take over 
the islands if the United States withdrew, that such a step would 
probably precipitate a world war, and that in the interests of peace 
and harmony it would be best for the United States to retain the 
whole group. Latane , From Isolation to Leadership . 85. 

55 For a list of these, see Finley & Sanderson, The American 
Executive and Executive Methods, 280-282. 



279. 



decision the issue of peace or war." 

That practice has, however, been only rarel; resorted to 
in later times , and generally the "advice" of the Senate, as well 
as its "consent", has been given only after the negotiations have 
been completed and the final treaty laid before it by the Presi- 
dent. There has been even less disposition to interpret that phrase 
""by and with the advice and consent of the Senate") as giving the 
Senate any right to participate as a body in the negotiations or 
to offer its advice as to the course and subject-matter of the nego- 
tiations. The determination of those has been generally held to 
be the function of the President alone, and only recently has there 
been any serious attempt to assert power on the part of the Senate 
to interfere or to interject its "advice" during the course of im- 
portant treaty negotiations, especially those for the conclusion of 
peace . 

Such an attempt was made, however, during the recent 
treaty negotiations at Paris, when Senator Knox, on June 10, 1919, 
in an attempt to ^orce the separation of the covenant of the League 
of Nations from the treaty of neace then being negotiated, proposed 
a resolution declaring, among other things, that the Senate of the 
United States, "being a coequal part of the treaty making power of 
this government and therefore coequally responsible for any treaty 
which is concluded and ratified", was "deeply concerned" over the 
treaty under negotiation; that it would regard a treaty confined to 

56 tlessage to Senate, June 10, 1846. Richardson, op. cit .. 
IV, 449. 

57 It is significant that President Wilson, in announcing 
his famous "fourteen points" as the necesscry conditions of peace, 
addressed Congress as a whole, and not the Senate alone. Address 
to Congress, Jan. 8, 1918. McKinley, Collected Llr.terials for the 
Study of the 7/ar , 20-22. 



280 



"the attainment of those ends for which we entered the wer", as 
"fully adequate for our national needs"; that the conclusion of a 
"full and complete peace "was the paramount, if not the sole duty of 
the peace conference; that the question of a League of Nations 
should be reserved for "future separate and full consideration" by 
the people of any nation; and that the adoption by the peace con- 
ference of "the foregoing reasonable limitations and positions" 

58 

would facilitate the early acceptance of the treaty by the Senate. 

This attempt to inject the advice of the Senate into the 
peace conference at Peris, and to influence the course of the 
negotiations, was directly contrary, not only to the traditional 
view that treaty negotiation is a function belonging solely to the 
President, but also to the expressed views of Senate leaders on 
former occasions that the Senate should hold itself distinctly 
apart from these negotiations, and only take action when the treaty 
is completed end laid before it, or when its advice is sought by 
the President. 

Thus, Senator Spooner, generally considered to be one of 
the best constitutional lawyers of his time, said with regard to 
this point: "The Senate has nothing whatever to do with the negotia - 
tion of treaties or the conduct of our foreign intercourse and rela- 
tions save the exercise of the one constitutional function of. ad- 
vice and consent which the Constitution requires as a precedent 
condition to the making of 8 treaty. . . From the foundation of 
the Government it has been conceded in practice and in theory that 
the Constitution vests the nower of negotiation and the various 
phases -- and they are multifarious — of the conduct of our foreign 

58 See text o^ resolution in Cong. Record . 66 Cong., 1 Sess., 
935. The resolution was, however, never acted upon. 



281. 



relations exclusively in the President . And he does not exercise 
that constitutional nower, nor can he be made to do it, under the 
tutelage or guardianship of the Senate or of the House or of the 
Senate and House combined. "^9 

Likewise, Senator Lodge, who recently has bitterly criti- 
cized President Wilson for "ignoring" the Senate in negotiating the 
Treaty o^ Versailles, had this to say in 1906: "Ho one, I think, 
can doubt the absolute power o^ the President to init iat e and carry 
on all negotiations . . . The action of the Senate becomes operative 
and actually effective only when a treaty is actually submitted to 
it. . .We (the Senate) have no possible right to break suddenly 
into the middle o^ a. negotiation and demand from the President what 
instructions he has given his representative. That part of the 
treaty making is no concern of ours . . . It is a mere invasion of 



the powers and rights of the President if we are to plunge in at 
a stage of the negotiations where we have no business whatever and 
demand from him the instructions which he has given to his properly 
appointed representatives. When the treaty made by those represen - 
tat ives comes before us, then is the time , and not before, in which 



we C8n properly ask for information in regard to ell that has led 
up to it." 60 

In the light of these strong expressions of opinion, it 
would seem that much of the recent criticism of President Wilson by 
Senator Lodge and his followers, is entirely hypocritical and un- 
justified, especially in so far as it is based on the relative 
constitutional position and powers of the Senate and the Executive 



59 Cong. Record , XL, Pt . 2 (59 Gong., 1 Sess.), 1418 (Jan, 
23, 1906). 

60 Ibid. , 1470. 



282 



in regard to the making of treaties, -however overbearing- end 
tactless the President may have been in his relations to the Senate, 
clearly he has at no time in his negotiation the Treaty of Ver- 
sailles exceeded the traditional view o^ his constitutional powers 
nor encroached on those of the Senate. 

The power of the President with regard to the conclusion 

of peace does not end with the negotiation and signature of the 
61 

treaty. The Senate must give its consent before the treaty can 
become fully effective and the state of war be actually terminated, 
but the fact that the Senate "advises and consents" to the ratifica- 
tion o-" a treaty is not conclusive, as the President alone can per- 
form the final act of ratification. The Senate may amend a treaty, 
but the President may decline to accept these changes and refuse to 
ratify the emended treaty. He may withdraw a treaty from the Senate 
at any time during its consideration, and he may, if he chooses, 
even decline to ratify a tr<=aty that has been approved by the 
Senate in its original form. In other words, while the "advice and 

consent" of the Senate is a condition precedent to ratification, it 

62 

is not mandatory -- the President has the final word. 



61 The mere signing of the treaty is of some importance, since 
it operates to bring about a suspension of hostilities, if that has 
not already been done by a separate armistice or protocol. Hall, 



International Law 1 554-555. 



6"S Crandall , Treaties: Their Making and Enforcement . 97. "The 
President is so supreme under the Constitution in the matter of treaj 
ties, excluding only the Senate's rat i^icat inn, that he may negotiate 
a treaty, he may send it to the Senate, it may receive by way of '8d| 
vice and consent' the unanimous Judgment of the Senate that it is in 
the highest degree for the public interest, and yet the President is 
as free when it is sent back to the White House with resolution of 
ratification attached, to put it in his desk never again to see the 
light of day as he was free to determine in the first instance whetheHr 
he would or would not negotiate it. That pov/er is not expressly givajn 
to the President by the Constitution, but it inheres in the executive 
power conferred upon him' to conduct our foreign relations, and it is 
e power which inheres in him as the sole organ under the Constitutio4 
through whom our foreign relations and diplomatic intercourse are 
conducted." Senator John C. Spooner,in U. S. Senate, Jan. 23, 1906. 
Cong. Record. XL. Pt . 2 (59 Cong., 1 Seas.), T419. 



883 



It is therefore within the power the President to de- 
termine the actual date for the termination of a war and the con- 
clusion of peace. That is done "by means o^ a proclamation, an- 
nouncing the effectiveness of the treaty or the exchange of ratifi- 
cations, in the case of a foreign war, or merely announcing the 
termination of armed resistance, in the case of a civil war. The 
actual exchange of ratifications, or the actual suppression of re- 
bellion, apparently are not enough; there must be an official de- 
claration of the event by the President. "The war commences when 
government officially says it has commenced, and it ends when 
government says it has ceased to exist" "government" in the 

latter case means the President. 64 

Thus, the war of 1812 was officially terminated on Februsr;; 
18, 1815, the war with Mexico on July 4, 1848, end the war with Spaij: 
on April 11, 1899, because the President's proclamation of that 
date in each particular case. Onl. in the case of the war with 

Spain did that date correspond with the date of the actual exchange 

65 

of treaty ratifications. So also the Civil fn'ar is declared by 
the courts to h8ve ended on April 2, 1866, with respect to all the 
insurrectionary states except Texas, and on August 20, 1866, with 
respect to Texas, because of the proclamations of the President de- 



63 Glenn, The Army and the Law , 64. 

64 "It is necessary to refer to some public act of the poli- 
tical departments of the government to fix the dates; and for ob- 
vious reasons, those of the executive department. . . must be taken'.' 
The Protector , 12 Wall., 700, 7C2 (1871). Of course the Court was 
here referring particularly to a civil war. 

65 For the proclamations, see Richardson, op. cit ., I, 560; 
IV, 627; For. Hel. 1898 . 831. In the ^irst care, the treaty was 
signed Dec. 24, 1114, and ratifications exchanged Feb. 17, 1815; 
in the second, the first treaty was concluded Feb. 2, 1848, and 
ratifications o 45 the amended treaty exchanged key 30; in the last 
case, the treaty was signed Dec. 10, 1898, and approved by the 
Senate Feb. 6, 1899. 

====^^ 



284 



daring ermed resistance st en end as those d8tes, although the 
last rebel army surrendered in May, 1865.^ 

Recent war legislation also shows clearly that Congress 
contemplated that the date for the termination of the state of war 
with Germany and Austria-Hungary should he determined by proclama- 
tion o^ the President. Thus, there were express provisions declar- 
ing that "the fact and date o:* 7 such termination shall be ascertained 
and proclaimed by the President", or that the end of the war "shall 
be deemed to mean the date of proclamation of exchange of ratifica- 
tions of the treaty of peace". In other cases, it was provided 
that the acts should terminate a certain time "after a final treaty 
of peace is -proclaimed", or "following the date of the proclama- 
tion by the President of the exchange of ratifications of the treaty 

67 

of peace", or similar languap-e. 

The powers of the President with regard to the conclusion 
of peace are therefore very extensive and quite definite. He may, 
on his ovn authority, undertake preliminary measures and enter into 
preliminary agreements for the termination of hostilities; through 
these preliminary measures, he may to a considerable extent lay 
down the conditions of permanent peace 8nd commit the nation to 
them. With regard to the definitive treaty of peace, the President 
has entire control the personnel o p the peace commission, and 
entire control of the peace negotiations; he is required to obtain 
the "advice and consent" o^ t e Senate before putting a treaty of 
peace into final effect, but when that is obtained, he is again 
absolute as to the fin?l acceptance of the treaty, and as to the 

time for its becoming effective. 

66 The Protector , 12 "all., 700, 702 (1871); Lamer v. Browne , 
92 U. S. , 187, 193 ( 1675) ; Birkhimer, Military Government and Lartia ! 
Law, 367-368; Richardson, op. cit. , VI, 429-432, 434-438. 

67 Supra. 261-262. 



285. 



Chapter XV. 
Powers with regard to Reconstruction . 

With the termination o^ the emergencies of war, it might 
be expected that the exercise of the "war powers" should immediately 
cease. Ex- Just ice Hughes thus expressed the view, shortly after 
the signing o^ the armistice at the close of the recent war, that 
in the harnessing of our strength for war we were acting "under the 
Constitution and not in violation of it", hut that to use the war 
powers to control peace conditions was a proceeding "essentially 
vicious and constituting the most serious offense against our in- 
stitutions.""*" Elihu Root, in his argument before the Supreme Court 
in the recent prohibition cases, likewise contended that the right 
to exercise the war powers no longer existed when the war emergency 
had passed. "The question", he said, "is much confused by a cer- 
tain vague and colloquial use of the term 'war powers'. War con- 
fers no powers upon Congress. The powers are all in the Constitu- 
tion o^ the United States. The condition of war does create exigen- 
cies which make appropriate the exercise of powers not otherwise 
existing. . . On the other hand, when the war has progressed to an 
extent that the enemy has been forced into submission and there is 
no longer an army or navy to be raised and maintained the power ends 
because the_ exigency no longer exists . 

It is generally recognized, however, that the return to 
normal peace conditions can be made only gradually, that there must 
be a period o^ readjustment and reconstruction during which certain 
of the war powers must of necessity continue to be exercised. Thus 



1 II. Y. Times . NOT. 29, 1918. 

2 Ibid . , WoyI 19, 1919. 



4 at 



* 



Mr. Hughes admitted, in the speech quoted above, that "whenever, 
during the war, extraordinary powers were fittingly exercised end 
governmental control was assumed for war purposes, the readjustment 
to conditions of peace must of course be effected gradually and 
with the circumspection essential to the protection o^ all the 
public and private interests involved". Professor Willoughby also 
remarks that "the power to wage war carries with it authority not 
only to bring it to a full conclusion, but, after the cessation of 
active military operations, to take measures to provide against its 
renewal";^ and the Supreme Court long ago held that "the power (to 
carry on war) is not limited to victories in the field. . . It 
carries with it inherently the power to gua rd against the immediat e 
renewal o^ the conflict , and to remedy the evils which have arisen 
from its rise and progress ."^ 

Although this opinion of the court referred particularly 
to the conditions resulting from the Civil War, there would here 
seem to be some warrant for the belief that the President, who as 
Commander-in-Chief has the power of waging war, is also entrusted 
with such powers 8S may be necessary to effect a complete return to 
the normal conditions of peace. 

Some of these powers, such as the resumption of friendly 

relations with the opposing belligerent, may result from an ordinary 

constitutional function, whose exercise in this case is made neces- 

5 

sary in order to completel;. restore the status of peace. In other 
cases, however, the termination of war and the consequent problems 
of reconstruction m.8y bring 8bout new situations which can only be 

3 On the Constitution , II, 1212. 

4 Stewart v. Kahn . 11 Wall., 493, 507 (1870). 

5 That is, the en-nointment and reception of accredited diplo- 
matic agents. 



287 



met by the assumption of unusual authority and the exercise of ex- 
traordinary powers. Thus, the measures undertaken by Presidents 
Lincoln and Johnson in reorganizing and reconstructing the govern- 
ments of the insurrectionary states of the South by executive orders 
and through military commanders, were upheld by the Supreme Court 
as a legitimate exercise by the President of his powers as Comman- 
der- in-Chief , subject to final determination by Congress. 

The successful conclusion of a war frequently results in 
the acquisition of additional territory, and the determination of 
the status, rights, and government of such acquired territory is 
one o p the problems of the reconstruction period. It is a well- 
recognized constitutional principle in the United States that, when 
territory is annexed by the United States or comes in any manner 
under its jurisdiction, Congress has an absolute right, from the 
moment of such acquisition, to determine trie political rights and 
governmental organization o^ that territory.® In the case of ter- 
ritory acquired by purchase or other peaceful means, Congress has 
generally seen fit to exercise that right by conferring temporary 
but complete governmental power on the President, until it can it- 
self provide for a definite system of government. 

Thus, after the cession of Louisiana, an act was passed 
providing that, until Congress should otherwise provide, "all the 
military, civil, and judicial powers exercised by the officers of 
the existing government of the same, shall be vested in such person 
or persons and shall be exercised in such manner as the President 



6 See Dunning, Reconstruction: Political and Economic . 35-39. 

7 Texas v. Y/hite . 7 ..all., 7C0, 730-731 (186b). 

8 V/illoughby, On the Constitut ion , I, 403. 



288. 



of the United States shell direct." Under this provision, the 
President exercised complete governmental authority over Louisiana 
until October 1, 1804, when the territorial government created by 
Congress went into effect. 1 ^ In almost identical language, Con- 
gress likewise vested the temporary government of Florida in the 
President, 1 "'" all the powers of which were exercised by him through 

General Jackson as governor and through other subordinates until 

12 

Florida was made a territory in 1822. Alaska, acquired in 1867, 

was governed under the sole authority o^ the President until 1900, 

when Congress adopted a civil code and pro\*ided a form of civil 

government for that region;-^ while Hawaii was governed by the 

President for more than two years under the authority of the joint 

14 

resolution of annexation. The government of the Panama Canal 
Zone, established and carried on by the President at first under 



9 Act of Oct. 31, 1803. Annals of Cong . . 8 Cong., 1 Sess., 
Apr., 1245. Objections were made to this grant of power on the 
ground that the combination of all governmental powers in one man 
was unconstitutional, and that it made the President a despot. 
Thomas, Military Government in Newly Acquired Territory of the 
United States , 30-31; Mc Master, History of the People o^ the 
United States . Ill, 9-10. 

10 Act of Mar, 26, 1804. Annals of Cong . , 8 Cong., 1 Sess., 
App., 1293. 

11 Acts of Mar. 3, 1819 & Mar. 3, 1821. Ibid . , 15 Cong., 
2 Sess., II, App., 2534; 16 Cong., 2 Sess., App., 1809. 

12 Act o^ Mar. 30, 1822. Ibid . , 17 Cone:., 1 Sess., II, App., 
2578; cf. Thomas, op. git, , 65-70~~ 95, 98. 

13 Act of June 6, 1900. 31 Stat, at L. , 321. The Presi- 
dent exercised his authority in Alaska principally through the army 
commanders and through the Secretary of the Treasury (Alaska hav- 
ing, by executive order, been mede a revenue district). Thomas, 

op. cit . , 279-280. Alaska was definitely organized as a ter- 
ritory by Act of Aug. 24, 1912. 37 Stat, at L ., 512. 

14 Joint Resolution of July 7, 1898. 30 Stat, at L .. 750. 
A territorial government was established Dec. 3, 1900, by Act of 
Apr. 30, 1900. 31 ibid . , 141. 



the authority of Congress, 10 was, upon the -failure of Congress 

to continue that authority, nevertheless continued by authority of 

several executive orders, until congressional sanction was again 
"1 7 

given in 1912. "Beginning with a government which might be termed 

political, it ended as a government by executive order, controlled 

by one man answerable only to the President of the United States, 

through the Secretary of War." 1 ^ 

7/hile the status end government acquired territory 

ere clearly subject to the jurisdiction and control of Congress, 

it would seem that another constitutional principle may be derived 

from these examples, namely, that in the absence of Congressional 

legislation, the President may exercise temporary governmental 

power on his own suthority. In feet, the presumption seems to have 

existed from the time of the ecquisition of Louisiana that the 

President could exercise such authority by virtue of his powers as 

1 9 

Commende r- in-Chief . 

In the case o^ territory acquired after conquest end oc- 
cupation in war, the rower of Congress likewise constitutionally 



15 Acts o^ June 28, 1902 (Spooner Act) & Apr. 28, 1904. 32 
Stat . at L . , 481; 32 ibid . , 429. The former authorized the Presi- 
dent to establish judicial tribunals in territory acquired for the 
canal, in order to enforce the rules and regulations which he might 
deem necessary end proper for the preservation of order and public 
health; which authority was considered sufficient to permit the 
establishment of "such form of government as the President might 
determine." The latter act provided that the President should be 
vested with all the powers of government until the expiration of the 
58th Congress, unless other provisions for a government were sooner 
mede. See Goethals, Government of the Canal Zone , 11-20. 

16 Executive orders o? Apr. 1, 1905; IIov. 17, 1906; April, 
1907; J8n. 8, 1908. Goethals, op. cit .. 43-50. The 56th Congress 
adjourned without me king any further provision -for the government 
of the Canal Zone. 

17 Panama Canal Act of Aug. 24, 1912. 37 Stet . at I. , 560. 

18 Goethals, op. cit ., 51. 

19 Willoughby, O n the Constituion , I, 390; Thomas, op. cit ., 
31-32. 



£90 



attaches from the moment of acquisit ion. However, the problem of 
the temporary government of such territory, in the absence of pro- 
vision by Congress, is somewhat different from that in the case of 
territory acquired peacefully. It involves the question of the con- 
tinuance of the military government already existing under the au- 
thority and direction of the President, or of the power to set up 
some other form of government under other authority. 

President Polk, after the ratification of the treaty of 
peace with Mexico in 1848, at first held that he had no power to 
continue the governments established by him over ITew Mexico and 
California during the war, but that upon the definitive conclusion 
of peace, these governments "necessarily ceased to exist". He also 
held that he had no power to establish other temporary governments 
without the sanction of Congress. "The war with Mexico having 
terminated", he said, "the power of the Executive to establish or 
continue temporary civil governments over these territories, which 
existed u^der the laws of nations whilst they were regarded as con- 
quered provinces in our military occupation, has ceased. By their 
cession to the United States Mexico h8s no longer any power over 
them, and until Congress shall act the inhabitants will be without 
any organized government . "^^ In order to prevent anarchy and con- 
fusion, the President therefore recommended the immediate establish- 
ment Of territorial governments in New Mexico and California, he 
himself proposing in the meantime merely to maintain a small mili- 
tary force in those regions in order to "hold the country and pro- 
tect the inhabitants againat Mexican, Indian, or other enemies who 



20 Messages o^ July 6 & July 24, 1848. Richardson, Messages 
and Papers o^ the Presidents , IV, 589, 596. 



might disturb them.*** 

The failure of Congress to provide a government for these 
newly acquired territories before adjournment, seemed to make neces- 
sary the establishment of a government by some other authority. 
Senator Benton, in a letter of August 27, 1848, addressed to the 
people of California, advised them to meet in convention, form a 
"cheap and simple" government, and take care of themselves until 
Congress should act. President Polk, considering this move "of- 
fensive" and "arrogant", and principally intended to make Colonel 
John C. Fremont (Benton's son-in-law) governor of an independent 
government in California, felt that so^.e greater exercise of Exe- 
cutive power was- necessary, confusion, anarchy, and possible 
revolution were to be avoided. He therefore summoned his Cabinet 
to consider the "question of difficulty", namely, "whet Government 
existed over the country until Congress should act, and what power 
to govern it the Executive possessed," and an agreement was reached 
that the temporary military governments established during the war 
should be regarded ae governments d_e_ facto , still existing by the 

presumed consent o^ the people, and to "which the people should be 

22 

advised to submit. 

Accordingly, Secretary of State Buchanan, in a letter of 
October 7, 1848, drew up instructions to the people of California, 
in which he expressed the position o^ the Administrat inn as follows: 
"The termination of the war left an existing Government, a Govern- 
ment d_e facto . in full operation; and this will continue with the 
presumed consent of the people, until Congress shall provide for 



21 Richardson, op. cit ., 589; Diary of James K. Polk , IV, 136. 

22 See Thomas, op. cit ., 130; Diary of James K. Polk . IV, 136- 
137, 140-143. 



202 



them a territorial Government. The great law of necessity justifies 
this conclusion. The consent of the people is irresistibly inferred 
from the fact that no civilized community could possibly desire to 
abrogate an existing Government, when the alternative presented 
would be to place themselves in 8 state of anerchy, beyond the pro- 
tection of all laws, and reduce them to the unhappy necessity of 
submitting to the dominion of the strongest ."23 

Similar instructions vere drawn up for the people of New 
Mexico by Secretary of far Marcy, 24 and President Polk himself an- 
nounced the new policy to Congress in December, stating that "the 
very limited power possessed by the Executive has been exercised 
to preserve and protect them from the inevitable consequences of a 
state of anarchy. The only government which remained was that es- 
tablished by the military authority during the W8r. Regarding this 
to be a de facto government, and that by the presumed consent of 
the inhabitants it might be continued temporarily, they were ad- 
vised to submit to it for the sh^rt intervening period before Con- 

25 

gress woulcl again assemble and could legislate on the subject." 

The same doctrine concerning the governmental power of the 

26 

President wa^ asserted also by the succeeding administration, 
but there seemed to be a distinct effort on the part of the Presi- 
dent in each case to emphasize the civil rather than the military 
authority of the governments so recognized as existing by necessity 
and presumed consent. The authorities apparently believed that "at 
the conclusion of the war the military government became merged into 

23 Buchanen to l£r« Voorhies, 8gent of the Post-Off ice Lepart- 
ment in California. Moore, Works of James .Buchanan . VITI, 211-216, 
esp. 213; cf. Diary James X. Polk, IV, 143, 146-149. 

24 Thomas, op. cit ., 132-133. 

25 Iuess8ge of Tec. 5, 1846. Richardson, op. cit .. IV, 638. 

26 Thomas, op. cit ., 211. 



293 



a sort d_e faoto civil government." Thus, President Polk selected 
General P. F. Smith as commander in California, because he was "a 
man of education and intelligence and possessed of much knowledge 
of civil government as well as of military command, and it was 
desirable to have such an officer in chie^ command in California 
in the present anoraylous state of that country."^ 7 

During the administration of President Taylor, General 
Riley, then commanding officer in California, issued 8 proclamation 
(June 3, 1849), in which he sought to correct the impression that 
the de facto government was still military in character. "The 
military government ended with the war", he said, "and what remeins- 
is the civil government, recognized in the existing laws of Cali- 
fornia. Although the command of the troops in this department and 
the administration of civil affairs in California are, by the exist- 
ing laws of the country and the instructions of the President of the 

United St8tes, temporarily lodged in the hands of the same indivi- 

28 

dual, they are separate and distinct." President Fillmore like- 
wise held that the civil and military departments in these temporary 
governments should be kept separate and distinct, and ordered the 
military governor of ilew Mexico not to interfere with civil and 
political 8-^fairs. "Temporary departure from this principle may be 

required occasionally, but it should close with the passing of the 

29 

necessity. No necessity now seems to exist in Hew Mexico." 

Y/hile the President himself in these early cases based 
his claim to temporary governmental power upon the doctrine of 



27 Diary of James K . Polk , IV, 149. Apparently Gen. Smith 
never acted as civil governor, however, but only as the senior com- 
manding officer for a short time. Thomas, op . cit . , 212. 

28 Thomas, on. cit., 211-212. 



29 Ibid., 146. 



294. 



necessity and the presumed consent the people rather then upon 
his "war powers", the Supreme Court seemed to take the view that the 
war powers might continue to be the basis for the exercise of such 
governmental power even after the conclusion of peace. The Court 
held that the restoration of peace did not, as a matter of course, 
terminate a military government established over conquered territory, 
but that an inference that it was to continue subsequent to the con- 
clusion o^ peace arose from the failure of the President or Congress 
to dissolve it. It therefore sustained the right of the President, 
in the exercise of his powers as Commander-in-Chief, not only to 
establish governments over conquered territory, but also to continue 

these governments in existence after the termination of the W8r, un- 

30 

til Congress should act. 

Whether acting as civil or military governor, however, the 
military com ander, as the President's most immediate representative, 
apparently may exercise as absolute powers in these de_ facto govern- 
ments 8f in the military governments during the war-time occupa- 
81 

tion.^ In Hew Mexico, Governor Vigil continued in office as civil 

governor for some time after the ratification of the treaty of peace, 

but Colonel John Price, the military commander, exercised the real 

authority. He approved, by special order, the acts passed by the 

legislature elected under Kearney's organic law, and even abolished 

the offices named in the statutes (secretary, district attorney, and 

marshal). Colonel John Munroe, when he became military commander 

and 

in New Mexico, assumed both the title and functions of "civil/mili- 
tary governor", and continued to act as such until New Mexico became 

30 Cross v. Harrison , 16 How., 164, 190, 193, 195 (1853); 
Leitensdor^er v. ',/ebb , 20 How., 176, 178 (1857). 

31 Cf. supra , Ch. IX. 

32 Thomas, op. cit ., 129; cf. supra , 180. 



295. 



33 

e territory in 1651. Likewise in California, the military com- 
mander issued orders and decrees having the force of law; appointed 
special tribunals; defined the jurisdiction of the courts; organized 
a supreme court; appointed and removed officials; and, finally, 
ordered an election for delegates to a constitutional convention, 
submitted the constitution to the people, and declared it ordained 

and established nearly a year before the state was actually admitted 
34 

by Congress. 

In the case o^ the territories acquired es a result of the 
Spanish-American War, Congress likewise failed to make immediate 
provision for taeir government, and the President therefore con- 
tinued to exercise all the powers of government over those terri- 
tories ""or some considerable time after the definitive conclusion 
of neace with Spain. Thus, in Porto Rico the military government 
instituted on October 18, 1896, continued to operate under the sole 
authority of the President until Lay 1, 1900, when it was superseded 

by the civil government established under the provisions of the 
35 

Forsker Act. The military governor, during that period, exercised 
absolute power over the affairs of the island, maintaining law and 
order, reorganizing the judiciary, reforming the criminal procedure, 
providing a new system of taxation, and gradually introducing free 
and self-governing institutions.*' In the words of a native writer, 
the military governor, as the representative of the President, "had 
absolute and complete control, not only over the army, but also over 
the civil populati-n of the island, and whatever orders he saw fit 



33 Thomas, op. cit ., 147. 

34 Ibid . , 229-234, 264-265, 269, 273-275. Gen. Riley yielded 

his authority on Dec. 20, 1849, to Peter Burnett, the governor elect 

ed under this constitution, although California was not admitted 

till Sert. 9, 1850. 

35' Act of Apr. 12, 1900. 31 Stat, at L . , 77. 206-208 

36 See Ro^e. The United States and Porto Rico 1 1 8-1 26 1 90-1 91 



296 



to issue had the force of law." 

Cube, though not ceded to the United States by the treaty 
of peace, was likewise kept under military occupation from the time 
of its seizure in 1898 until the inauguration of the republic on 
Hay 20, 1902; and during that time the President, through the Secre- 
tary of War and the military governor, administered the affairs of 
that island at his discretion. The suffrage qualifications were 
determined upon by "general agreement" of the military governor with 
"leading Cubans", while election laws and other statutes were pro- 
mulgated, and the self-governing powers of the municipal govern- 
ments were enlarged or the municipalities suppressed altogether by 
38 

military order. Finally, when the Executive deemed the time ripe 
for complete self-government, the military governor summoned a con- 
stitutional convention, determined the number and distribution of 

39 

lelegates, carefully instructed them as to their duties, and saw 
to it that the provisions suggested by the Secretary of War as the 



37 Pedro Capo-Rodriguez, in Am. Jour. Int. Law, IX, 904. In 
jonnection with the transfer of the government from the military to 
the civil authorities, there occurred an interesting illustration 

)f the power of the military governor to meet an extraordinary situa- 
tion. The civil officials provided for in the Fo raker Act not hav- 
ing all been able to qualify by the time set for the transfer, and 
the military officers being forbidden by statute to hold civil of- 
fice, the military governor on April 30 simply reorganized the mili- 
tary government so as to conform to the plan of the Foraker Act and 
appointed civilians to fill the offices until those selected by the 
President could qualify. See Rowe. op.eit . ,134-136 ; Thomas, op. cit . ,310. 

38 Of the 138 municipalities in Cuba, 56 were suppressed "on 
the ground that they had neither the resources nor populatinn suffi- 
cient to maintain a well organized municipality." Gen. Leonard Wood, 
'The Military Government of Cuba", Ann. Am. Acad . , XXI, 160-161. 

39 See order of July 25, 1900, calling the election for dele- 
rates; also the opening statement of the military go\ T ernor to the 
jonvention, Nov. 5, 1900, in which he said: "Under the order pur- 
suant to which you have been elected end convened you have no duty 
2nd no authority to take part in the present government of the island 
Your powers are strictly limited by the terms of that order." Root, 
ailitary and Colonial Policy of the United States, 195, 196. 



297 



basis for the future releticns between Cuba and the United States, 4U 
were adopted by the convent ion. ^ He also passed upon the constitu- 
tion adopted by this convention, and not before it hed been treated 
by him "as an acceptable basis for the formation of the new govern- 
ment" was the transfer to that new government permitted to take 
place. 42 In effect, the President not only exercised all "the powers 
of government over the island of Cuba while it was under military 
occupation, but himself determined when and under what conditions 
such military occupation should cease and the troops and authority 
of the United States be withdrawn, the assumption of this authority 
being upheld by the Supreme Court as a legitimate function of the 

43 

"political branch" of the Government, in this case the Executive. 

In the Philippines, the President likewise carried, on the 
government for about two years after the definitive conclusion of 
peace, "untremmeled or unaided by any word from Congress." Although 



40 Instructions of Secretary of V/ar Root to Ha j • Gen. Wood, 
Feb. 9, 1901. Root, op. c it., 208-212. With regard to these pro- 
visions, Secretary Root instructed Ma J • Gen. Wood as follows: 
"These provisions may not, it is true, prove to be in accord with 
the conclusions which Congress may ultimately reach when that body 
comes to consider the subject, but as, until Congress has acted, 
the Executive must necessarily within its own s-phere be controlled 
by its own judgment, you should be guided by the views above ex- 
pressed." Ibid . . 212. These provisions were, however, embodied in 
the famous Piatt Amendment to the Act of Mar. 2, 1901. 31 Stat, at 
L^, 895, 897. 

41 "On receipt of the instructions by c8ble I imne diately as- 
sembled the Committee on Relations to Exist between Cuba and the 
United States and made known to them the five articles or provisions 
which, in the opinion of the Executive branch of the Government, 
represent the wishes of the United States in all that pertains to 
the proposed relations between the Government of the United States 
and the people of Cuba. I was particularly careful to impress upon 
them that Congress might in its wisdom insist upon different condi- 
tions or relations, but that the proposition submitted embodied 
those which in the opinion of the Executive branch of the Government 
should exist and that they were the only ones which t jaey could at 
present cons i der ." Laj. G e n. Wood to Secretary of War Root, FebT 
19, 1901. Root, op. cit ., 186. 

42 Ibid. , 215. 

43 ITeely v. Henkel , 180 U. S., 109, 124 (1901). 



£98 



» 



Secretary of War Root announced that all -"ormal and o^en resistance 

to the authority of the United States had terminated in the spring 
44 

of 1900, President McKinley, by virtue of his authority as Comman- 
der-in-Chief, 4 ^ continued the military governor as the executive 
authority in the islands, but vested the legislative power in a 
civilian Commission. 46 He outlined the duties of this Commission 
and the general policy towards the Philippines in elaborate instruc- 
tions, which came to be considered the "organic act of the Philip- 
47 

pines", and under which more than 400 laws were enacted "by autho- 
rity of the President of the United States" and subject only to the 

4fi 

approval of the Secretary of War. 

In 1901, however, the President was given express authorit; 

49 

by Congress to govern the Philippines temporarily, and was thus 
no longer "orced to base his actions on his "war powers". Under 
this new authority, the Philippine Commission was continued as be- 
fore, but the military and civil authority in the islands were still 
further separated, the military governor being relieved of all his 
civil duties, and the president of the Commission, Mr. Taft, being 
appointed civil governor, with power to exercise the executive au- 



44 Root, op. cit ., 238. 

45 "The sole power which the President was exercising in the 
Philippine Islands was a military power derived from his authority 
under the Constitution as Commander-in-Chief of the Army and Navy." 
Ibid . , 252, 295. 

46 The second Philippine Commission, appointed Mar* 16, 1900, 
and composed of William H. Taft, Dean C. Worcester, Luke E. Wright, 
Henry C. Ide, and Bernard Moses. For the first Commission, see 
surra , 175, note 21. 

47 Instructions of Apr. 7, 1900. Root, op. cit ., 287-294. 

48 Ibid . , 294-295. "While the President vested and could vest 
in it no greater legislative authority than the military co (mender 
previously held, it has exercised that authority in accordance with 
legislative forms." Ibid . , 254. 

49 By the so-called Spooner Amendment to the Act o^ Mar. 2, 
1901. 31 Stat, at I ., 895, 910. 



£99 



thority in civil affairs heretofore exercised by the military gover- 
50 

nor. The organization of separate executive departments and the 

creation o^ the office of vice-governor, were further steps in the 

development of civil government undertaken by the President by virtu£ 

of his general power as Chief Executive and the authority vested in 

51 

him by Congress. 

Finally, the last insurgent leaders having surrendered 
52 

in April, 1902, and the Philippine Commission created by the 

President having been given express legislative sanction and autho- 
5*5 

rity, the President, on July 4, 1902, terminated altogether the 
office of military governor in the Philippines, made the military 
forces subject to the call of the civil authorities "for the mainte- 
nance of law and order and the enforcement of their authority" , ^ 
and thus, in the words of Secretary Hoot, "a complete system of 
civil government, built up under the authority of the President . 

55 

was in operation, ready to go on under the authority of Congress." 

In other matters, also, the President may be said to have 
considerable power with regard to reconstruction 8fter war. Several 
of the most important war enactments of Congress, conferring large 
powers upon the President during the recent war with Germany and 
Austria-Hungary, show that Congress contemplated a period of recon- 



50 o e e order of June 21, 1901. Root, op. cit ., 262. 'J aft was 
inaugurated civil governor on July 4, 1901. On the same day Maj. 
Gen. Chaffee succeeded Ma j . Gen. KacArthur as military governor, 

but with duties applying only to the unpacified regions 0* the 
Philippines . 

51 Ibid . , 262-287. Luke E. './right was appointed vice-gover- 
nor, the order reading "by virtue of the authority vested in me as 
President of the United States." Ibid . , 264. 

52 Ibid., 316-317. 

53 Philippine Government Act of July 1, 1902. 32 Stat, at I ., 
691. From this time the laws parsed by the Philippine Commission 
were enacted "by authority o* the United States", instead of "by 
at 



ithority of the President ."Root , op^cit.. 295. 
54 * Order of July 4, 1902. Ibid . f 31 7 - 316 . 



£5 Ib i d , , 319. 



300 



struct ion during which the President might continue to exercise 
those war powers and gradually bring about an adjustment to the 
normal conditions of peace. 

Thus, by the terras of the Emergency Shipping Fund Act and 
of the Overman Act, trie President was expressly authorized to exer- 
cise the powers therein granted for a period of six months after 
the termination of the war by the proclamation of a final treaty of 
peace; while, by the Railway Control Act, he was empowered to con- 
tinue his control of the railroads for a period of one year and nine 

56 

months after that event. The long delay in securing the final 
termination of the state of war made the armistice period virtually 
a period of reconstruction, during which President Wilson exercised 
his war powers as he deemed such exercise necessary to bring about 
the readjustment to normal conditions. The control of trie rail- 
roads was thus continued until Larch 1, 19£0, frankly not as a war 

measure, but "to render an adequate and convenient transportation 

57 

service at reasonable cost." 

Similarly, the President revived and exercised his war 
powers under the Food and Fuel Control Act at various times during 
this reconstruction period. Thus, so ,.e of the war-time food restric 
tions, which had been lifted shortly after the signing of the armis- 
tice, were revived about a year later, end the powers of the Food 
Administrator transferred by executive order to the Attorney-General 
in an attempt to avert a sugar famine and lower the high cost of 
living. ^ The war-time powers of the Fuel Administration were like- 
wise revived by executive order of October 50, 1919, and exercised 

56 Acts o^ June 15, 1917; Bar. El, 1918, (bee. 14); iylay 20, 
1918 (Sec. 1). Wigmore, Source-Book of Military Law and Y/er-Time 
legislrt ion . 464, 563, 586. 

57 Statement of Director General Hines. Supra, 247, note 78. 

58 N. Y. Times. Nov. 22, 1919; cf. supra . 235. 



301 



to meet the situation caused by the coal strike of that time, and 

later (December 10), in that connection, virtually transferred to 

59 

a wage commission of three men. By executive order of February 
28, 1920, the President again formally continued the Fuel Adminis- 
tration, "because of the present emergency, and in order to insure 
an adequate supply and equitable distribution, end to facilitate 

the movement, 8nd to prevent locally or generally, scarcity of 

60 

coal"; and vested its powers in a commission of four men. Finally 

only a month later (April 1), President 111 son accepted and affirmed 

the majority report of the commission appointed in lecember to fix 

miner's wages, and at the same time removed all governmental con- 

61 

trol over the fuel industry, except as to export coal. 

The exercise of these war powers by President Wilson is 
in every instance clearly warranted by the ^act of the continuance 
of the state of war. However, but for the unusual and unexpected 
delay in terminating that state of war, these same problems and 
situations would have arisen during a time of technical as well as 
virtual peace, and they seera to demonstrate the necessity for an ex- 
tension of the President's war powers into the period of reconstruc- 
tion and readjustment, in order to meet effectively just such pro- 
blems that arise out of war conditions, except in the extraordinary 
cases mentioned, where the courts have held that necessity and the 
failure of Congress to act are a sufficient justification, the 

exercise of such power is dependent upon definite statutory eutho- 

_ 

59 Supra ,236- ; see statement o^ the former Fuel Administrator, 
Er. Garfield, before the Senate Committee on Interstate Commerce, 
Dec. 13, 1919. II. Y. Times Current Hist. Mag. , XI, Pt. 2, 30 
(Jan., 1920). The commission was composed of Henry Robinson, 
John P. White, and Rembrandt Peele. 

60 1 . Y . T ime s , Feb. 29, 1920. This commission was composed 
of A. W. Howe, Rembrandt Peale, F. II. Whittacker, and J. F. Fisher. 

61 See announcement in United States Bulletin , Mar. 29, 1920. 



302 



rity. The grant of such authority during the recent war is likely 
to neve set a precedent that will be followed without much question 
in case o 4 " similar emergencies in the future. 

The exercise o? war powers during- a period of reconstruc- 
tion cannot be a source of danger, since it is always subject to a 
check by Congress. In no case can it be said that the President has 
any absolute powers with regard to reconstruction problems, as he 
has with regard to the actual conduct of the war. It has been noted 
that any povers in this respect may be exercised by the President 
only because of the failure of Congress to act, or by virtue of ex- 
press statutory authority. Hence, Congress may at any time check any 
undue exercise of Executive power, either by taking definite action 
itsel^ in the one case or by repealing its grant of power in the 
othe r. 



203 



Chapter XVI. 
Conclusion 

In summing up the results o* this stud] , it may be rioted 
again th^t the war powers o r the President are derived principally 
from the Constitution. There is only one clause in that instrument, 
however, which expressly confers upon the President rny power relat- 
ing directly to war, namely, the clsuse which makes him Commonder- 
in-Chief of the army end navy of the United States end o** the mili- 
tia of the several states v/hen celled into the actuml service of the 
United Stetes. Sven the powers of the President as C ommo nde r- in- 
Chief ere undefined in the Constitution, end hence it has been 
necessary to determine them more exactly by reference to interna- 
tionel lew end practice, to the statutes of the United States, to 
custom and usage, end to euthoritat ive opinion. 

However, the Constitution vests in the President other 
powers end duties which do not necessarily or primarily imply the 
existence of wer for their exercise, but which mey have a close 
relation to the initiation and conduct of war, and must therefore 
be considered in this connection. The most important of these are 
the powers o^ the President with regard to foreign relations and 
the powers that mey be derived from his position as the Chief 
Executive of the nation. The scope of these powers is likewise un- 
defined in the Constitution, and must again be determined through 
necessary implication end authoritative interpretation. Other 
powers o^ the President thet heve been noted as bearing upon the 
conduct o* war are his powers of erpointment end removal, his power 
of pardon, and his power 8nd influence with regard to legislation. 

Again, other clauses of the Constitution, while not ex- 



304. 



pressly conferring any power uron the President, have "been taken 
into account because they may, by necessary implication, add to his 
war powers. These are particularly the clauses which relate to the 
suspension of the writ of habeas corpus, and guarantee to the 
states a republican ^orm o^ government and protection from in- 
vasion, insurrection and domestic violence.^ Those clauses of the 
Constitution which confer powers relating to war expressly upon 
Congress have also been taken into consideration. 

]?rom our study of these express powers, as interpreted 
and applied in the various emergencies that have arisen, it may be 
said, in the first place, that the President, through his control of 
foreign relations, his power as Commander-in-Chief, and his in- 
fluence end authority as Chief Executive, may virtually compel or 
prevent a war, act his discretion. He may very largely influence a 
declaration of war by Congress, and he may even begin a "defensive" 
war without such a declaration. 

In the second place, it is the President, not Congress, 
who wages war, his military powers as Commander-in-Chief making him 
supreme in that respect and solely responsible ^or the actual con- 
duct of war. His constitutional powers in this regard are customer! 
ly supplemented with considerable statutory authority, so that he 
has l»rre powers with regard to raising end organizing the armed 
forces; he directs end controls all military operations; he exer- 
cises complete powers of military jurisdiction; and he establishes a 
carries on military government — in fact, when a war has been de- 
clared or begun, the President may do pr^cticall;, anything, in a 
military sense, that he deems necessary to carry on that wer to a 



1 Cf. supra , 12, notes 34-36. 



205 



successful conclusion, subject only to the rules of civilized war- 
fare. 

Thirdly, the civil powers of the President ere greatly in- 
creased in time of war over those powers in time of peace. Prin- 
cipally by virtue of statutory authority, but in part also by virtue 
of his express constitutional power of appointment, snd his im- 
plied powers of removal and direction, together with his authority 
as Commender- in-Chief , the President, during such a period of emer- 
gency, is vested with almost complete control of the administrative 
machinery o^ the government; he exercises extensive powers of police 
control end supervision over individual action and opinion; end he 
may even, as in the recent world war, practically control the 
economic resources of the country. 

In the fourth piece, the President, es Commander-in-Chief, 
determines when end upon what conditions hostilities are to cease; 
and, since a treaty of peace is the only constitutional method pro- 
vided for terminating a war on the part of the United States, he may 
also, by virtue o^ his treety -making powers, very largely determine 
the definitive conditions of peace and the time for the final ter- 
mination of the state of war. 

Finally, it has been pointed Out 'hat the President may, L|l 
the absence of Congressional ection, provide for and carry on the 
government of territory that may have been acquired es a result of 
war, end in other ways exercise certain of his war powers during the 
period of reconstruction following war, in order to meet extraordi- 
nary situations that may arise during such a period, and to bring 
about a gradual readjustment to the normal conditions of peace. 

At least one definite conclusion c8n be drawn from this 



study, namely, thet the so-called "war powers" of the Executive 

constitute no isolated group of powers derived from 8 single source, 

but that they ere intimately connected with and indeed derived from 

practically every phase of the President's authority. In general, 

the war powers of the President cannot he precisely defined, but 

must remain somewhet vague end uncertain. "The Constitution", says 

President V/ilson, "is not a mere lawyers' document: it is a vehicle 

2 

o^ life, end its spirit is always the spirit of the age." !That 
statement is particularly true of that portion of the Constitution 
dealing with the war powers. The exigencies and circumstances of 
war can never be foreseen or provided against in advance, to any 
appreciable extent. Hence, the interpretation of what may actually 
be included within the war powers depends very largely on the 
gravity of the particular occesion for their exercise end the pecu- 
liar necessities that arise in connection. 

Thus it was, for example, that the power to arm merchant 
ships in defense was first asserted by President Adams as the pre- 
rogative o^ the Executive, under the stress of the troubles with 
France in 179G. likewise, the power ot the Executive with regard 
to military government in occupied territory was firmly established 
as a pert of American constitutional lew by President Polk, because 
of the necessities of the wsr with Mexico. Under President Lincoln 
and the stress of civil war were developed especially the powers of 
censorship snd arbitrary arrest, and of military government over 
territory within the United States; while under President Wilson, 
probably the control exercised by the Executive over the administra- 
tive machinery of the government and the economic resources of the 



2 Constitutional Government in the United States. 69. 



307. 



country are the outstanding features of the war powers, as exercised 
during the recent world war. 

Clearly, the tendency has been towards a great increase 
in the wer powers o^ the Executive as compered with those of Con- 
gress, 8 tendency quite inevitable when one considers the growing 
complexity of war, with its consequent greater need for singleness 
of direction, unity of commend, end the coordination of every re- 
source of the nation. On the other hand, there is also a tendency 
to pay more attention to constitutional forms in bringing about 
this necessary concentration of power, rather than to rely upon an 
arbitrary exercise of power when the occasion may demand. Thus, 
while President Wilson undoubtedly exercised a vastly greater power 
during the recent world war then did President Lincoln during the 
Civil V/er, he was careful to consult with Congress almost continu- 
ously during the war, and to secure express authority from that 
body in almost every case where there might be any doubt as to his 
own power to act without t:uch authority; while President Lincoln, in 
cases of doubtful authority and even of undoubted lack of autho- 
rity, such as increasing the regular armed forces, suspending the 
writ of habeas corpus, and issuing the emancipation proclamation, 
usually acted first and secured the sanction of law afterwards, if 
at all. 

Although, as has been noted, many of the President's war 
powers are derived from express statutory grants rsther than direct- 
ly from the Constitution, end are therefore subject to modificetion 
8t the discretion of Congress, it may safely be a sumed that powers 
thus grrnl ed will, upon occasion, be granted again with more readi- 
ness, the necessity for such exercise of power having been too cleer4 



306 



ly demonstrated in the pest. It is probable, for example, that Con- 
gress would not hesitate, in case of a future war of similar im- 
portance, to vest the President immediately with the powers exer- 
cised by President Wilson under the Food end Fuel Control Act, the 
Railway Control Act, or the Trading with the Enemy Act. A precedent 
of centralization of power and concentration of effort in time of 
war is not apt to be ignored, but, on the other hand, is more liable 
to be accepted as a principle to be followed in the future, if oc- 
casion arises. It may be noted here that, in the parliamentary 
governments of Europe, such as Great Britain, v/here the direction 
of war is vested in a Cabinet of several members rather than in a 
single Executive, the tendency, as shown especially during the re- 
cent world war, has been distinctly towards a concentration o^ the 
war powers in the hands of a smaller group, approaching singleness 
of control. In the United States, the experiences of a multiple 
direction of war through the activities of the Congress during the 
Revolution and 0* the Joint Committee during the Civil .Var, have not 
been forgot* en, but were sufficient to prevent the institution, dur- 
ing the recent war, of any similar checks on single Executive autho- 
rity. 

While the President, in critical times, thus becomes prac- 
tically a dictator, that does not necessarily mean a disrepard of 
the principles 0^ constitutional government nor require further 
limitations 0* his war powers. One of the foremost students of 
contemporary American politics says that the ability to act prompt- 
ly and energetically in the presence of emergency being of para- 
mount importance, "no government can survive that excludes dictator- 
ship when the life of the nation is at stake", and he points out 



309 



ttiet the reel difference between a despotism and constitutional 
government lies in the location of responsibility rather than in 
the limitation of rower. 

Certainly the tendency in the United States has been to- 
wards the concentration of the wsr powers in the hands of the Execu- 
tive. Llore and more, hov/ever, hes that been done by express legal 
sanction; end more and more is the responsibility for anything in 
the "'ay of executive action being definitely located in the Presi- 
dent, so that, at the most, the President may be said to be in time 
of war, a "constitutional dictator". Even so, the authority of the 
Executive under his rar powers is so extensive that one can only 
reflect the words ©f James Bryce when he wrote about the President 
that "when foreign affairs become critical, or when disorders within 
the Union require his intervention, . . everything may depend on 
his Judgment, his courape, and his hearty loyalty to the principles 
o* the Constitution." 4 



3 H. J. Ford, "The Growth of Dictatorship", in Atlantic 
Monthly , CZZI, 652-640 (Kay, 1918), esp. 634. 

4 American Commonwealth , I, 67. 



jjc sfc 5jC J^C 

*** 
* 



310. 



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California Law Review, vol. 6, pp. 134-141 (January, 1918). 
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VITA . 

Clarence Arthur Berdahl was born in Llinnehaha County, 
South Dakota, June 14, 1890. His early 8 ducat ion was obtained in 
the common schools of Linnehaha County and at August ana College 
(academy), Canton, South Dakota, from which he was graduated in 
1911 os valedictorian. In the fall of 1911 he entered St. Olaf 
College, at Uorthfield, Minnesota, on a scholarship, and at the 
end o^ his Junior yesr received one of the four Talla scholarships. 
He was graduated in 1914, receiving the degree of Bachelor o^* Arts 
with highest honors. 

After graduation, he taught History and Civics for one 
year In the High School at Fergus Falls, Minnesota; and spent some 
time in the government service at Washington, as clerk in the 
Archives Division, of the : .7ar Department and as assistant in the 
Periodicals Division of the Library of Congress. During the school 
yesr of 1916-1917, he took up graduate work in History, Political 
Science, and Economics, at the University o^ South Dakota, receiv- 
ing the degree of Master of Arts in June, 1917. In October, 1917, 
he entered the University of Illinois, where, except for a period 
of service in the 8rmy, he has since held a Fellowship in Politi- 
cal Science. In the spring of 1920, he was elected e member of 
Phi Beta Kappa. 

Since 1917 he has assisted in compiling the lists of 
publications of political interest for the American Political 
Science Heview; in the summer of 1919 he assisted ProfeBBor Cole 
in editing the Illinois Constitutional Debates of 1647; and re- 
cently he has published an article on the Richards primary law of 
South Dakota, in the American Political Science Heview (Feb., 1920).